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SUCCESSION
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Q & A SERIES
SUCCESSION THIRD EDITION

Robert McKeon
LLB, Solicitor
Senior Lecturer in Law
Manchester Metropolitan University

Cavendish
Publishing
Limited

London • Sydney
Third edition first published in Great Britain 2001 by Cavendish
Publishing Limited, The Glass House, Wharton Street, London WC1X
9PX, United Kingdom
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© McKeon, R 2001
First edition 1995
Second edition 1996

All rights reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted, in any form or by any
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British Library Cataloguing in Publication Data

McKeon, Robert
Succession—3rd ed—(Cavendish Q & A series)
1 Inheritance and succession—England
2 Inheritance and succession—Wales
I Title II Jones, Ian
346.4'2'052

ISBN 1 85941 621 7

Printed and bound in Great Britain

 PREFACE

Particular tribute should paid to Ian Jones, who produced the first
two editions of this book. His enthusiasm, charm and store of
anecdotes are sorely missed by friends and colleagues alike.

Robert McKeon
Manchester
March 2001

v
 ACKNOWLEDGMENTS

Some of the questions used in this book have been taken from
past University of London LLB (External) Degree examination
papers and kind acknowledgment is made to the University of
London.

vii
 CONTENTS

Preface v
Acknowledgments vii
Table of Cases xi
Table of Statutes xix

1 Validity of Wills: Nature of Wills and the

Mental Element 1

2 Validity of Wills: Formal Requirements 23

3 Revocation and Alterations 37

4 Privileged Wills and Mutual Wills 55

5 Intestacy 63

6 Family Provision 77

7 Types of Gift, Construction, Failure of Gifts 105

8 The Administration of the Estate 147

Index 219

ix
 TABLE OF CASES

Abram, Re [1996] 2 FLR 379 88, 95, 100

Adams, In the Goods of (1872) LR P & D 367 109
Adams, Re (1900) LR 13 Eq 381 48, 50
Agnew v Belfast Banking [1896] 2 IR 204 128, 129
Alexander’s WT, Re [1948] WN 220 20
Allan v Morrison [1900] AC 604 49
Allen v McPherson (1847) 1 HLC 191 16
Allsop (Dec’d), Re [1968] 1 Ch 39 123
Anstead, Re [1943] Ch 161; [1943] 1 All ER 522 190
Ashburner v McGuire (1786) 2 Bro CC 108 141
Attenborough and Son v Solomon [1913] AC 76, HL 149, 150, 151, 152, 199

Bacharach’s WT, Re [1959] Ch 245 20

Bailey, Re [1951] Ch 407 117
Banks v Goodfellow (1870) LR 5 QB 549 1, 11, 12, 13, 14,
28, 31, 32, 33
Barrass v Harding (2000) unreported 100
Barry v Butlin (1838) 2 Moo PC 480 11, 34
Basham, Re [1987] 1 All ER 405 89, 138
Beaney, Re [1978] 2 All ER 595 136
Beaumont’s WT, Re [1950] Ch 462 190, 191
Beaumont, Re [1902] 1 Ch 889 126
Beaumont, Re [1980] 1 All ER 266 77, 82
Benjamin, Re [1902] 1 Ch 723 155
Berger (Dec’d), Re [1989] 1 All ER 591 1, 3, 4, 25, 27
Besterman, Re [1984] Ch 458; [1984] 2 All ER 656 78, 83, 85, 86,
90, 97, 102, 103
Betts v Doughty (1879) 5 PD 26 17
Biggs’ Estate, Re (1966) P 118 162
Biggins v Biggins (2000) unreported 15
Bingham, Re (1959) unreported 179
Birch v Birch (1848) 1 Rob Eccl 675 53
Birmingham v Renfrew (1937) 61
Birmingham, Re [1959] Ch 523; [1958] 2 All ER 397 172
Bishop v Plumley [1990] 1 All ER 236, CA 77, 81, 89, 136
Bohrmann, Re [1938] 1 All ER 271 1, 12
Booth, Re (1926) P 118 44
Bothamley v Sherson (1875) LR 20 Eq 304 110
Bouette v Rose (1999) unreported 77, 82
Bowlby, Re [1904] 2 Ch 685 203
Boyes v Cook (1880) 14 Ch D 53 106, 119
Brassington, In the Goods of (1902) P 1 48

xi
Q & A ON SUCCESSION

Bravda, Re [1968] 2 All ER 217; [1968] 1 WLR 479 27

Brown v Skirrow (1902) 85 LT 645 23
Brunt v Brunt (1873) 3 P&D 37 44, 48
Buckenham v Dickinson (1997) unreported 13
Budd v Fowler (1998) unreported 77, 97
Bunning, Re [1984] Ch 480; [1984] 3 All ER 1 78, 83, 86, 90, 97, 103

C, Re (1991) unreported 2
Caine v Moon [1896] 2 QB 283 127, 130
Callaghan, Re [1984] 3 All ER 790 79, 94
Carrv Carr (1997) 23 June, QBD 87
Carr-Glynn v Frearsons [1998] 4 All ER 225 194
Chana v Chana (2000) unreported 12
Chalcraft, In the Goods of (1948) P 222 23, 29
Chapman, Re (1999) unreported 23, 25, 31
Charter v Charter (1874) LR 7 364, HL 112, 115, 119
Cheese’v Lovejoy (1877) LR 2 P&D 78 44, 46, 47
Chelsea Waterworks v Cowper (1795) 1 Esp 275 168
Christian, In the Goods of (1849) 163 ER 1260 35, 40
Christie, Re [1979] Ch 168 90, 91, 93, 94
Clark (Dec’d), Re (1991) Fam Law 564 86
Clarke v Bruce Lance & Co (1988) 195
Clayton v Lord Nugent [1844] 153 ER 83 120, 121, 124
Cleaver, Re [1981] 2 All ER 1018 56, 60, 61
Clifford, Re [1912] 1 Ch 29 105
Clore, Charles (Dec’d), Re [1982] Ch 456;
[1982] 3 All ER 419, CA 162, 214
Cockburn, Re [1957] Ch 438 151
Coleman, Re (1958) unreported 55, 57
Coleman, Re [1976] Ch 1; [1975] 1 All ER 675 37, 43, 44, 46
Colling, Re [1972] 3 All ER 729: [1972] 1 WLR 1440 23, 29, 30
Collins v Elstone (1893) P 1 19, 34
Commissioners of Stamp Duty v Livingstone
[1965] AC 694; [1964] 3 All ER 629 204, 205
Cook, Re [1948] Ch 212 25, 119, 124
Cook, Re [1960] 1 All ER 689 26
Cooper v Bockett (1846) 13 ER 365 52
Cope, Re (1880) 16 Ch D 49 215
Corbett v Bond Pearce (2000) unreported 6
Corbett v Newey [1995] 1 All ER 570 4, 6, 25
Corbett v Newey [1998] Ch 57 57
Couser v Couser [1996] 1 WLR 1301 23, 30

xii
 TABLE OF CASES

Coventry, Re [1979] 3 All ER 81578, 80, 87, 90,92,

93, 94, 95, 97, 100
Craig v Lamoureux [1920] AC 349 16
Craven’s Estate (No 1), Re [1937] 3 All ER 323 126, 128
Crispin’s WT, Re [1975] Ch 245; [1974] 3 All ER 772, CA 63, 74, 75
Crowden v Aldridge [1993] 3 All ER 603 205
Crowther, Re [1895] 2 Ch 56 212

Dabbs, Re (2000) unreported 11

Dale, Re [1993] 1 All ER 317 61
Davey, Re [1980] 3 All ER 342; [1981] 1 WLR 164 2
Davidson, Re [1949] Ch 670 118, 124
Davis v Lush (1991) unreported 86
Davis, Re (1952) P 279; [1952] 2 All ER 509 39
de Renville v de Renville (1948) P 100 46
Dennis, Re [1981] 2 All ER 140 92
Dew v Clark (1826) 3 Add 79 1, 12
Dillon v Public Trustee ex New Zealand [1941] AC 491;
[1941] 2 All ER 284 7
Diplock, Re [1948] Ch 465; [1948] 2 All ER 318 210
Doe d Gord v Needs (1836) 2 MW 129 109
Dorman,Re [1994] 1 All ER 804 105, 111
Douglas-Menzies v Umphelby [1908] AC 224 3
Drake’s WT, Re [1970] 3 All ER 32 119
Dudman, Re [1925] 1 Ch 553 129
Duffield v Elwes (1827) 1 Bli NS 497 128
Dunbar v Plant [1997] 3 WLR 1261 108, 145

Edmondson, Re [1972] 1 All ER 444, CA 145

Edwards, Re (1890) 63 LT 481 107
Elliott v Dearsley (1881) 16 Ch D 322 188
Evans, Re (1999) unreported 155

Fenwick, Re (1972) LR1 PD 319 11

Ffinchv Combe (1894) 70 LT695 52
Finn, In the Estate of [1935] All ER Rep 419 35
Finnemore (Dec’d), Re [1992] 1 All ER 800 45
Fish, Re [1894] 2 Ch 413 121, 125
Fluyder, Re (1889) 2 Ch D 562 168
French’s Estate, Re (1910) P 169 216
Fullard, Re [1982] Fam 42 100
Fulton v Andrew (1875) LR 7 HL 448 34, 35

xiii
Q & A ON SUCCESSION

Gage, Re [1934] Ch 536 106

Gardner v Parker (1818) 3 Mudd 184 126, 128, 130
Gibson, Re (1866) unreported 107, 143, 144
Gill v Gill (1909) P 157 48
Gill, Re (1873) 3 PD 113 164
Gillett’s WT, Re [1950] Ch 102 188
Godfrey, Re (1893) 69 LT 22 48, 50
Goodchild, Re [1996] 1 All ER 670 98
Goodwin, Re [1968] 3 All ER 12 101
Gordon, Re [1940] Ch 769; [1940] 3 All ER 405 174, 176
Green, Re [1951] Ch 148; [1950] 2 All ER 913 60
Greville v Browne (1859) 7 HLC 689 188, 189
Groffman, Re [1969] 2 All ER 108; [1969] 1 WLR 733 30
Grosvenor, Re [1916] 2 Ch 375 199
Guardhouse v Blackburn (1866) LR 1 PD 109 12, 14, 16, 33, 57
Gunstan, Re [1882] 80 WR 505 40

H, Re (1990) unreported 145

Hagger, Re (1930) unreported 56, 60
Hale, Sarah, In Bonis (1915) 55
Hall v Hall (1868) LR 1 P&D 481 14, 16
Hammersley v De Biel [1845] 8 ER 1312 8
Harland-Peck, Re [1941] Ch 182 175, 177, 179, 180, 190
Harlow v National Westminster Bank, Re
(1994) The Times, 31 January 88
Hart v Tulk (1852) 3 De GM & G 300 20
Harvell v Foster [1954] 2 QB 367 149, 151, 215
Hedges v Hedges (1708) Prec Ch 269 125
Hedley Byrne v Heller [1961] 3 All ER 891 194
Hickman v Peacey [1945] AC 304 107, 132
Hobbs v Knight [1838] T Curt 768; (1838) 163 ER 2667, PC 48
Hobley, Re (1997) The Times, 16 June, Ch D 62
Horner, Re [1965] VR 177 4
Horrocks, Re [1939] 1 All ER 579; (1939) P 198 18, 20
Hutchinson, Re [1955] 1 All ER 689 74

Inns, Re [1947] Ch 576 89, 92

Itter, Re [1950] 1 All ER 68 52
IRC v Stype Investments (Jersey) Ltd (1982) 155
See Clore, Charles (Dec’d), Re

Jackson, Re [1933] Ch 237 110, 113, 122, 125

James, Re [1947] Ch 256; [1947] 1 All ER 402 174, 175, 177

xiv
 TABLE OF CASES

Jelley v Iliffe [1981] 2 All ER 29, CA 77, 81, 89, 135

Jessop v Jessop (1992) 1 Fam Law 591 101
Job v Job (1877) 6 Ch D 562 168
Jones v Midland Bank [1997] Fam Law 660 145
Jones v Roberts [1995] 2 FLR 422 108, 145
Jones, Re [1976] Ch 200; [1976] 1 All ER 593 38, 45, 46, 49, 50
Jones, Re [1981] 1 All ER 1 55, 57, 58, 208

K (Dec’d), Re [1985] Ch 85; [1985] 2 All ER 833, CA 108, 205, 206

Kecskemeti v Rubens Rabin & Co
(1992) The Times, 31 December 194
Kell v Charmer (1856) 23 Beav 195 120, 121
Kempthome, Re [1930] 1 Ch268 175, 177
King’s WT, Re [1964] Ch 268 149, 151, 152, 153, 200
Knibbs, In the Estate of [1962] 2 All ER 829 55, 58
Kourgey v Lusher (1982) 12 Fl 86 FD 89, 96
Krubert, Re [1996] 3 WLR 959 78, 86
Kuypers Trusts, Re [1925] Ch 244 111, 114, 142

Lamb v The Lord Advocate [1976] SLT 151 132

Lamb, Re [1929] 1 Ch 723 180, 188
Lambell v Lambell [1831] 162 ER 1266 49
Langston, Re (1953) P 100 43
Lay, In Bonis (1940) unreported 55
Leach, Re [1985] 2 All ER 754 78, 94
Leigh’s WT, Re [1970] Ch 277 205
Lewis v Madocks [1803] 32 ER 310 9
Lillingstone, Re [1952] 2 All ER 184 126, 128
Loveday, In the Goods of (1900) P 154 154, 215

Malone v Harrison [1959] 1 WLR 1353 89, 92, 98

Marsland, Re [1939] 3 All ER 148 9
Martin, Re [1955] Ch 698 190, 191, 192, 193
McKee, Re [1931] 2 Ch 145 190
McPhail v Torrance (1909) 25 TLR 810 8
Meldrum, Re [1952] Ch 208 174, 176
Midgley, Re [1955] Ch 576 190, 191
Miller, Re (1961) 105 SJ 207 127, 137
Mills v Millward (1889) 15 PD 20 48
Mills v Shields (1948) IR 367 127
Millward v Shenton [1972] 2 All ER 1025, CA 95
Ministry of Health v Simpson [1951] AC 251;
[1950] 2 All ER 1137, HL 209

xv
Q & A ON SUCCESSION

Moody v Stevenson [1992] 2 All ER 524 103

Morley’s Estate, Re [1937] Ch 491 202
Morris, Lily, Re (2000) unreported 15
Morris (Dec’d), Re (1971) P 62; [1970] 1 All ER 1057 19, 34, 120, 121
Morton, Re (1887) 12 PD 141 44
Mountford v Gibson (1804) 4 East 441 163, 164

NSPCC v SNSPCC [1915] AC 207 118, 122

Needham v Kirkham [1820] 106 ER 755 8
Needham v Smith [1828] 38 ER 825 8
Neeld, Re [1962] Ch 643; [1962] 2 All ER 335 206
New York Breweries v AG [1899] AC 62 155, 160, 162, 164
Nunn, In the Estate of (1936) 154 LT 498 44, 50

Oldham, Re [1925] Ch 75 60
Oxley, Re [1914] 1 Ch 604 212

Palmer (Dec’d) (A Debtor), Re [1993] 3 All ER 835 184

Parfitt v Lawless (1872) LR 2 P&D 462 16
Parker v Clark [1960] 1 All ER 93 6
Parker v Felgate (1883) 8 P&D 171 31
Parkinson, Re (1975) The Times, 4 October 102
Pearce, Re (1998) unreported 79, 88, 95, 100
Pepper v Pepper (1870) 5 IR Eq 85 44
Perrin v Morgan, Re [1943] AC 399 112, 113, 115, 116,
118, 119, 124
Perry v Hicknell (1982) unreported 173
Phelan, Re (1972) Fam 33 18
Phelps, Re [1980] 1 Ch 275; [1979] 3 All ER 373 71
Pilot v Gainfort (1931) P 103 43
Pollock, Re (1943) 2 ARL SR 443 203
Ponder, Re [1921] 2 Ch 59 149, 151

Raine, Re [1929] 1 Ch 716 203

Rattenbury, Re [1906] 1 Ch 667 203
Redell v Dobree (1839) 10 Sim 244 127
Reynolds, Re [1966] 1 WLR 19 74, 75
Ricketts v Turquand [1848] 9 ER 842 125
Rigden v Vallier (1751) 2 Ves Sen 252 126
Roberts v Walker (1830) 1 R & My 752 188, 191
Roberts, Re [1978] 3 All ER 225; [1978] 1 WLR 653 9, 39, 46
Robertson v Broadbent (1883) 8 AC 812 188

xvi
 TABLE OF CASES

Robinson v Ommanney (1883) 2 Ch D 285 9

Rose, Re [1949] Ch 78 111
Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580 19, 121, 148,
193, 194, 195
Rowland, Re [1962] 2 All ER 837 112, 118, 123
Rowley v Adams [1839] 41 ER 379 168

Sabatini, Re (1969) 114 SJ 35 49

Salmon, Re [1981] Ch 167; [1980] 3 All ER 532 77, 97
Sanger, Re [1939] Ch 238 175
Scale v Rawlins [1892] AC 342; (1892) 66 LT 542 118, 123
Schaefer v Schuhman [1972] 1 All ER 621 7
Scott v Scott (1859) 1 Sw & Tr 258 49
Selby-Walker, Re [1949] 2 All ER 178 203
Sen v Headley [1991] 2 All ER 636 106, 127, 128, 137, 158
Sharland v Mildon [1845] 67 ER 997 163
Shore v Wilson (1842) 8 ER450 120
Sikes, Re [1927] 1 Ch 364; (1927) 136 LT 666 107, 143, 144
Sinclair, Re [1985] Ch 446 37
Sivewright, Re (1922) 128 LT 416 199
Skinner, In the Estate of, Re [1958] 3 All ER 273 181
Slater, Re [1907] 1 Ch 665, CA 105, 111, 114, 142
Smalley, Re [1929] 2 Ch 112 118
Solicitor, A, Re [1975] QB 475; [1974] 3 All ER 853 2, 16
Southern (1925) P 177 45
Sperling, In the Goods of, Re (1863) 3 Sw & Tr 272 27
Stable, Re (1919) 120 LT 160 55, 58
Stalman, Re (1931) 145 LT 339 26, 35
Steele, In the Goods of (1868) unreported 51
Stephens v Taprell [1840] 163 ER473 48
Stevens, Re [1897] 1 Ch 422 211
Stevenson, Re (1897) unreported 162, 169
Stirrup’s Contract, Re [1961] 1 All ER 805;
[1961]1WLR447 200
Stone v Hoskins (1905) 93 LT 441 62
Sugden v Lord St Leonards (1876) 1 PD 154, CA 46, 49, 50
Swords, In the Goods of [1952] 3 All ER 281 18
Syer v Gladstone (1885) 30 Ch D 614 172
Synge v Synge (1901) P 317 6, 7, 8

TWGS v JMG (2000) unreported 146

Tankard, Re [1942] 1 Ch 69; [1941] 3 All ER 458 169, 178

xvii
Q & A ON SUCCESSION

Taylor, Re (1890) 63 LT 230 49

Thompson v Mechan (Ontario CA) [1958] OR 357 137
Thompson v Thompson (1821) 147 ER 152 168
Thompson, Re [1936] 1 Ch 203 187, 188, 190, 191, 193
Thorn v Dickens (1906) WN 54 106, 117, 119
Ticehurst, Re (1973) The Times, 6 March 2, 12, 13, 34
Trimmer v Danby (1856) 25 LJ Ch 424 128
Turner v Buck (1874) 43 LJ Ch 677 203

Underwood v Wing (1855) 4 De GM WLR G 633 131, 132

Valpy, Re [1906] 1 Ch 531 176

Vynior’s Case (1609) 8 Co Rep 816 47

W, Re (1975) LS 9 100
Walker v Geo H Medlicott & Son [1999] 1 WLR 727 195
Watson, Re (1999) unreported 81
Weatherhill v Pearce (1994) The Times, 7 November 23, 30, 31, 35
Webb, Re [1964] 2 All ER 91; [1964] 1 WLR 509 45
West, Re [1913] 2 Ch 345 199
Whitby, Re [1944] Ch 210; [1944] 1 All ER 299 74
White v Jones [1995] 2 AC 207; [1995] 2 WLR 187 194, 195
White, Re [1990] 2 All ER 1 26, 27, 41
Whitrick, Re [1957] 1 WLR 884 20, 21, 120, 121
Whyte v Ticehurst [1986] 2 All ER 158 100, 139
Wilkes v Allington [1931] 2 Ch 104 126, 130
Wilkes, Re (2000) unreported 13
Wilkinson, Re [1978] 1 A11ER221 89, 135
Wilson, Re [1966] 2 All ER 867 187, 190
Winfield v Billington (1990) unreported 90, 103
Wingham, Re [1948] 1 All ER 208; [1948] 2 All ER 908, CA 55, 57
Wingrove v Wingrove (1885) 11 PD 81 14
Wintle v Nye [1959] 1 WLR 284 12, 16, 34
Wood v Smith [1992] 3 All ER 556 11, 24, 26, 28, 35, 39, 41
Woodard, Re (1994) unreported 137, 158
Woodward v Woodward (1992) RTR 35 127
Wordingham v Royal Exchange Trust Co Ltd
[1992] 3 All ER 204 19, 20, 121
Worthington, Re [1933] Ch 771 187, 188, 189, 190, 191
Wright v Netherwood (1793) 2 Salk 593n 131

xviii
 TABLE OF STATUTES

Administration of 121, 122

Estates Act 1925 148, 186, s 20 (1)(a) 20
192, 193 s 21 8, 107, 108,
s7 150, 165, 183, 116, 121, 122
215, 216 s 21 (1)(a) 121
s 28 163 s 21(1)(b) 109, 121, 122
s 33 65, 189, 190 s 21(1)(c) 110, 121–23, 141
s 33(1) 189 s 22 107
s 33(2) 189, 191 Administration of
s 34 175 Justice Act 1985—
s 34(iii) 173, 174, 186 s 48 209
s 34(3) 171, 178, 179,
180, 187–91 Building Societies
s 35 171, 172, 178 Act 1986 160
s 35(1)z 179, 180
s 36 200 Children Act 1989—
s 36(4) 151, 200 s2 214
s 36(5), (7) 20 ss 4, 5 215
s 41 105, 201, 202
s 41(1)(ii), (3) 201 Family Law
s 43(2) 201 Reform Act 1987 112, 198
s 46 64, 65, 73 ss 20, 27 198
s 46(1) 134 Forfeiture Act 1982 108
s 46(3) 132 s2 145
s 47 68, 71 Inheritance (Provision
s 47(1)(a) 66 for Family and
s 47(1)(i) 24 Dependants)
s 49 68 Act 1975 10, 42, 77, 80,
s 55 66 84, 85, 91, 92,
s 55(1)(vii) 190 94, 96, 99,
s 55(1)(x) 63, 66, 70, 73, 135, 138
74, 75, 135 s1 94, 97
Sched 1, Pt II 178, 186, 187 s 1(1) 77
Administration of s 1(a) 82, 96, 100–03
Estates Act 1971— s 1(c) 80, 87, 94, 96
s9 162 s 1(d) 87
Administration of s 1(e) 88, 96, 135, 136
Estates (Small s 1(a)–(e) 91
Payments) Act 1965 159 s 1(2) 91, 97
Administration of s 1(2)(a) 85
Justice Act 1982 23, 26, s 1(2)(b) 91, 100
120, 122 s 1(3) 96, 135, 136
s 17 24, 25, 30, 35, 40 s3 87, 101
s 18 39, 43 s 3(2) 85, 103
s 18(2) 42 s 3(2)(a) 98
S19 142 s 3(2)(a)–(f) 81, 98
s 20 2, 19, 118, s 3(5) 93

xix
Q & A ON SUCCESSION

s4 87 Supreme Court Act 1981

s9 101 s 61 207
s 10 89, 90, 137 s 114 67
s 11 102 s 117 207
s 118 214
Inheritance Tax
Act 1984— Trustee Act 1925
s 199 163 s6 208
s 200 163 s 23 169
s 200(1)(c) 128 s 27 148, 154, 168,
Insolvency Act 1986 185 196, 197, 208
s 421(4) 184 s 27(2) 197
s 36 150
Law of Property s 61 169, 208
Act 1925— Trustee Act 2000 148, 155
s 177 43 Trusts of Land and
s 184 107, 109, 112, Appointment of
123, 131–33, 156 Trustees Act 1996 65
Law of Property
(Miscellaneous Wills Act 1837 5, 159
Provisions) Act 1989— s9 2, 3, 11, 14,
s2 7, 8 23–26, 29, 30,
Law Reform 32, 35, 39, 41, 42,
(Miscellaneous 52, 56, 110, 194
Provisions) Act 1934 100 s 9(a) 26, 28, 40
Law Reform s 9(b) 26, 40
(Succession) Act 1995 37, 46, s 9(c), (d) 40
63, 69, 72, s 11 25, 55, 57
77, 132 s 15 7, 27, 45, 69,
s1 138, 157 70, 107, 194
s 1(1), (2) 68 s 18 6, 9, 37, 39,
s2 88 43, 44, 47, 51
s 2(1) 81, 88, 98 s 18(1) 43
Limitation Act 1980 208, 209 s 18(a) 39, 40, 43
ss 5, 24 208 s 18(a)(i) 42
s 18(3) 37
Married Woman’s s 18(4) 44, 46
Property Act 1882— s 18A 37
s 11 158 s 20 6, 35, 37, 39,
Matrimonial 44, 46, 47
Causes Act 1973— s 21 28, 38, 40, 41,
s 18(2) 67 48, 51, 52,
Social Security Act 1975 185 109, 110
Statute of Frauds 1677 46, 47 s 22 39

xx
 TABLE OF STATUTES

s 24 8, 107, 111, Act) 1852 25

143, 144 Wills Act 1968—
s 33 13, 107, 140, s1 7, 27
142, 150, 200 Wills (Soldiers and
Wills Act (Amendment Sailors) Act 1918 55

xxi
 CHAPTER 1

VALIDITY OF WILLS: NATURE

OF WILLS AND THE
MENTAL ELEMENT

Introduction

The questions in this chapter deal with the broad topic known as
the will making process. Careful study should be made of the
nature of the will. Contrast, for example, a testamentary
instrument, that is, a will or codicil, with a deed, a gift inter vivos
and a donatio mortis causa. Further problems are raised by contracts
to make (or not to make) a will or particular disposition.
A will has two key characteristics:

• a will is revocable by the testator until death;

• a will is only effective on the death of the testator.

These two key characteristics run like a thread through the law of
succession. The nature of a testamentary instrument was
considered by the court in Re Berger (1989).
Study of the area of mental capacity to make a will should be
broken down into the general test of capacity set out by
Cockburn CB in his lengthy judgment in Banks v Goodfellow
(1870). He suggested that the testator had to be of sound mind,
memory and understanding. This has been interpreted as a
requirement that the testator must know that he is making a
will, must know the general extent of his property and must be
aware of the moral claims on his estate which he ought to
consider. There are specific defects which can render the whole
will invalid or an individual gift inadmissible as in the case of
delusions (see, for example, Dew v Clark (1826) and Re Bohrmann
(1938)). In addition, there are the problems which arise where
the testator is still alive but lacks the requisite mental capacity
and the effect this has on powers of attorney and the usefulness
of the enduring power of attorney. Related to this is the
possibility of making a statutory will on behalf of a testator

1
Q & A ON SUCCESSION

lacking requisite mental capacity. A useful study here of the

kind of practical problems that can arise is in relation to the
background and cases of Re Davey (1980) and Re C (1991).
Issues of capacity broaden into the general test of knowledge
and approval which includes suspicion, including the duties of a
solicitor to his or her client. Useful studies here include the cases
of Re Ticehurst (1973) and Re A Solicitor (1975), together with the
Law Society Guidelines on Professional Conduct. There can be a
tendency to blur the distinction between suspicion on the one hand
and undue influence on the other. In order to establish undue
influence, there must be some evidence of coercion. In order to
establish fraud, there must be proof of deceit. Finally with regard
to knowledge and approval, there are the cases on mistake and
the limited statutory powers of rectification contained in s 20 of
the Administration of Justice Act 1982.

Question 1

Charles, a French student on a study visit to England, is chatting

in a cafe with his two friends, Arthur and George. The talk turns
to the subject of wills and Charles demonstrates how easy it is to
make a will by writing one out then and there on a scrap of paper.
Some of the writing is in French, other parts in English.
On the assumption that Charles has capacity and that the
document is duly executed, discuss the validity of the will.

Answer plan

The question is inviting consideration of the nature of a will and

the intention required to make one.

Answer

In order to make a valid will, Charles needs to have capacity,

intention and to comply with the formal requirements of s 9 of the
Wills Act 1837. Capacity and compliance with the formal
requirements are presumed, but Charles’ intention requires in

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 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

depth consideration, as does the nature of the document itself as

it is partly in French and partly in English.
The requirement of intention, or animus testandi, has been
defined as an intention to make a ‘revocable ambulatory
disposition of the maker’s property which is to take effect on
death’, per Lord Mustill in Re Berger Dec’d (1989).
Re Berger was concerned with the status of a zavah, that is, a
document written in Hebrew, which is a mixture of religious
exhortations and dispositions of movable property. A zavah is
intended to be binding in Jewish law, but it was not clear what the
relationship was to English wills. The problem arose because the
last will of the testator, dated 9 August 1977, was signed with only
one witness. Therefore, this will was inadmissible under s 9 of the
Wills Act 1837. However, on the previous 6 August, the testator
had executed a zavah which did comply with the formalities
required by s 9. Probate was sought of this zavah incorporating
the 9 August will. (The testator had been in possession of the will
subsequently dated 9 August at the time he executed the zavah.)
A testator has only one will, but this can be made up of
several dispositions provided they are testamentary in nature.
Admission of a number of documents was considered in
Douglas-Menzies v Umphelby (1908): ‘It is the aggregate or the net
result that constitutes his will, or, in other words, the expression
of his testamentary wishes. The law…on a man’s death, finds
out what are the instruments which express his last will… In
this sense it is inaccurate to speak of a man leaving two wills;
he does leave, and can leave, but one will’
The problem in Berger was did the testator intend the zavah to
operate as a will and be granted probate? Did he have the necessary
animus? There was no clear evidence. The facts established that
the testator had made a document which he intended to have
disposive effect, and this document was executed in the manner
required by the Wills Act. Despite there being no evidence as to
the testator’s animus concerning the zavah operating as an English
will, the court admitted the zavah with the August will
incorporated, a decision affirmed by the Court of Appeal. Mustill
LJ concluded that the various zavah were intended to operate in
the shadow of the English wills, even though he added that the
testator may have been startled to learn that the zavah was being
admitted by an English court of probate rather than a rabbinical
tribunal.

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Q & A ON SUCCESSION

Sir Dennis Buckley stated the law on animus testandi as follows:

English law does not require a document which is intended to have

testamentary effect to assume any particular form or to be couched in
language technically appropriate to its testamentary character. It is,
says Jarman (On Wills, 8th edn, 1951) sufficient that the instrument,
however irregular in form or artificial in expression, discloses the
intention of the maker respecting the posthumous destination of his
property. It may be made in any language. If it is made in a foreign
language, the court must be furnished with an authenticated
translation made by a qualified translator. It is that translation, not
the text in the foreign language, which is admitted to probate. It is
from the document so admitted to probate together with any other
relevant testamentary instruments that an English court will ascertain
the testator’s testamentary intentions and determine their effect and
validity.

In order to admit a testamentary instrument, there must be the

necessary animus. The absence of animus may be proved by parol
evidence in relation to an instrument which on the face of it appears
to be a valid and properly executed will—Re Horner (1965). In the
Australian case of Re Horner, the testator executed two documents
on the same day, not having made up his mind at that time which
document was to be his will. The court held that at the time of
execution, the testator did not intend either document to be the
depository of his testamentary wishes; therefore, he did not have
the necessary animus testandi. Accordingly, the remaining
document could not be admitted to probate.
At first instance in Corbett v Newey (1995), Eben Hamilton QC
distinguished Re Horner on the basis that at the time of execution,
the testator in Horner had not made up his mind which of the two
documents was to be his will. In Corbett v Newey, there was no
doubt as to the testatrix’s wishes, although she may have been
misguided as to whether they would become effective. The
decision has been overturned on appeal.
In Corbett, the testatrix, by an earlier will, bequeathed two farms
to a nephew and niece respectively and left the bulk of the residue
between them. She then decided to transfer the farms to the
beneficiaries inter vivos but, in view of this, to change the
destination of the residue to benefit her great-nephews. It became
clear the deeds of gift would not be available for execution at the

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 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

same time as the new will. The testatrix made arrangements to

execute the will in September 1989 but to leave the date blank,
requesting the solicitor to date the new will contemporaneously
with the date of the deeds of gift. The testatrix mistakenly believed
that the dating of the will was essential to its operation. She had
no animus to execute an unconditional will. Reference was made
to the dicta in Re Berger on the meaning of animus testandi.
The Court of Appeal (Waite LJ) said that since the will
operated from the moment of its execution, it necessarily
followed that to possess the necessary animus testandi, the
testator had to intend that that dispositive, although revocable
and ambulatory, regime would be called into play immediately
and not postponed to, or made dependent upon, some future
event or condition. The only conclusion open on the evidence
was that at the moment of execution, the testatrix, because of the
misapprehension under which she was acting, lacked the animus
to make any valid will, in the sense of a will intended to be
immediately dispositive, at all. Even if the testatrix had had an
immediate animus testandi to make a conditional will, it was not
an animus to which she ever succeeded in giving effect, for the
will she executed was unconditional. Waite LJ said that it would
be against the weight of authority and contrary to the express
terms of the Wills Act 1837 to allow extrinsic evidence as to her
intention to be used to write into her will, for probate purposes,
a condition which she had neither stated in writing or signed.
In the present circumstances, it is difficult to see a court
coming to the conclusion that Charles had the requisite
intention. He was ‘demonstrating’ how a will could be made
and, as such, it would seem extremely doubtful that he was
intending it to take effect as a testamentary instrument. The fact
that part is in French and part in English will not of itself have
an effect on the will’s validity, but may give added weight to the
argument that he lacked a general intention.

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Q & A ON SUCCESSION

Note

It is interesting that in Corbett v Newey (1995), the testatrix left the

date blank on the advice of her solicitors. As the Court of Appeal
found the will invalid, an action in negligence was subsequently
commenced against the solicitors. The action was successful
(Corbett v Bond Pearce (2000)).

Question 2

James makes a will leaving all his property to his niece, Kay. He
then asks Kay to live in his house and act as his housekeeper and
promises he will not alter his will. When James dies, Kay discovers
he has made a later will leaving all his property to a named charity.
Kay alleges James was bound by the promise not to alter his will.
Would it make any difference if instead of making a later will,
James had married, with the result that the will in favour of Kay
had been revoked by the subsequent marriage?

Answer plan

The problem is addressing the relationship between the key

characteristic that a will is revocable until death and the effect of a
contract to make a will. Has the promisee a right of action against
the estate if the will is not made or subsequently altered? Further,
what is the effect if the will is revoked by the subsequent marriage
of the testator, s 18 of the Wills Act 1837, rather than by revocation
by the testator (animus revocandi) in accordance with s 20?

Answer

Kay may be able to take action against the estate of James for
breach of contract in respect of the personal estate. A will is
always revocable. However, in Synge v Synge (1894), the court
held that a contract to make a will leaving property in a certain
way was valid. The court ordered the beneficiaries under the
will to convey the property to the promisee. Parker v Clark (1960)

6
 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

said that a contract where the testator would leave his house to
a woman if she acted as his housekeeper could be valid. This is
unlikely to apply today in respect of dispositions of land in view
of s 2 of the Law of Property (Miscellaneous Provisions) Act
1989. Section 2 provides that the contract must be in writing and
incorporate all the terms agreed in one document, either by
setting them out in the document or by reference to some other
document; and be signed by each party to the contract. In the
case of a will, this is signed by the testator alone; therefore, the
will alone could no longer form the contract. If, by chance, the
promisee had been a witness to the will which incorporated the
terms of the contract in respect of realty one would have to
consider the relationship between s 15 of the Wills Act 1837, the
denial of gift to the witness beneficiary and the beneficiary/
promisee as signatory to the purported contract. A further
complication is where the witness could avoid s 15 by invoking
s 1 of the Wills Act 1968.
The decision in Synge v Synge shows that the rules as to
freedom of testamentary disposition do not make such contracts
invalid. The contracts fall into two broad categories. One is the
contract merely to make a will, the other, the contract which
ensures that specified property will pass to the promisee in any
event. The first type of contract is completely discharged by
performance when the will is made. If the will is not made, the
promisee is entitled to be placed only in the same position as if
the contract had been made. In Dillon v Public Trustee ex New
Zealand (1941), Henry Dillon was involved in litigation with his
sons. The dispute was settled on the basis that Henry would
make a will leaving certain land to them. Henry executed a will
leaving the land as agreed with the residue of the estate to his
wife. On his death, his widow applied for reasonable provision
from the estate. The issue was whether the widow could go
against the land specifically devised in seeking an order. The
court said yes; by making the will, Henry had discharged his
obligation to the sons; therefore, they were in the same position
as any other devisee. It follows that a contract merely to make
a will does not protect the promisee because the contract, once
made, does not imply the will will not be revoked. Compare the
decision in Dillon with Schaefer v Schuhman (1972), where the
promisee established the contract was founded on part

7
Q & A ON SUCCESSION

performance and claimed the house as a creditor and not as

devisee.
Where the contract is construed as one where the promisor
intends the property to pass to the promisee in any event, the
contractual obligation is only discharged by performance when
the property actually passes to the promisee (Synge v Synge). If
the property does not effectively pass under the will, the promisee,
Kay in this problem, will have a right of action against the estate—
Hammersley v De Biel (1845).
The court will not restrain the revocation of a will, however,
where a contract can be proved. The court will recognise the
contract by restraining dispersal of the property in
contravention of the contract, as in Synge v Synge, or award
damages for breach as in Hammersley v De Biel. In order to
establish the existence of a contract, the basic elements of
contract must be present. Kay would have to prove there was an
intention to create legal relations. This should not be difficult,
given the relationship of employer and employee. There must be
offer and acceptance, here the request to stay in the house
combined with the promise not to alter the will. Such promises
would provide the requisite consideration. However, the effect
of s 2 of the 1989 Act would make it unlikely that Kay could
enforce a contract in respect of the house itself. But the promise
is to leave all James’ property. The house apart this would be
construed as a general residuary gift, that is, providing sufficient
certainty of subject matter. Compare this with a provision to
leave ‘ample provision’. Such a vague description could fail (see
McPhail v Torrance (1909)) unless s 21 of the Administration of
Justice Act 1982 could allow the admission of extrinsic evidence.
There may be difficulty in fixing the moment in time to identify
the property, for, in this case, James has left all his property. Does
this mean all the property he owns at the date of the will or at the
date of his death? In the absence of a clear intention to the contrary,
the court will invoke s 24 of the Wills Act 1837 and construe the
words as an intention to leave all the property at the date of death.
How does this equate with the contract made at the date of the
will not to revoke? There is no implied promise the testator will
not reduce his estate prior to death (Needham v Smith (1828)). It
follows that the testator is free to dispose of property in his lifetime
which was acquired after the contract was made (Needham v
Kirkham (1820)). What is uncertain is where the promise relates to

8
 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

only a part of the testator’ sproperty and how far this property is
protected by the promise. While the testator can make a genuine
outright disposal of the whole or part of the property, if he converts
the property into other property which he retains, the conversion
will not be allowed to operate to the disadvantage of the promisee.
So, in Lewis v Madocks (1803), the contract was to leave the testator’s
personalty to the promisee. The testator sold some personalty and
purchased land. The court held the land stood charged with a sum
to the purchase money to be held in favour of the promisee.
Although, as stated above, Kay would have difficulty in enforcing
a contract in respect of realty, she could argue this latter point if
James sold, say, shares and acquired more land prior to his death.
If James had entered into a valid or voidable (Re Roberts (1978)),
marriage after the date of the will the marriage would revoke the
will (s 18 of the Wills Act 1837) unless the will was made in
expectation of the marriage. There is no evidence James had made
the will in expectation of his marriage. If Kay has established a
contract in respect of at least a part of the property in the estate
what is the effect of the revocation?
Whether Kay can take action depends upon the nature of the
contract. Has James merely contracted not to revoke his will or
has he contracted to the effect that the property is to pass to Kay
in any event? If James had revoked the will under his own volition,
as above, the estate would be liable under either head. However,
where the will is revoked by operation of law, as in this case, by s
18, this is not a deliberate revocation on the part of the testator. If
the contract as proved is construed as a contract not to revoke the
will, there is no breach of contract where the revocation occurs as
a result of operation of law (see Re Marsland (1939)). However, if
the intention in entering into the contract is to leave the property
to the promisee in any event, then the contractual obligation
remains outstanding until the death (Robinson v Ommanney (1883)).
Whether Kay could take action in this latter case will therefore
depend upon the construction of the contract.

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Q & A ON SUCCESSION

Question 3

Helen died in March this year, a spinster aged 84. She had lived as
a recluse for the last 20 years in a large house set in 30 acres of
remote countryside. Her only companions were the housekeeper,
Laura, and Eric, the estate manager, who also took care of all her
financial matters. Helen had inherited the house together with its
valuable paintings from her father.
Two weeks before Helen’s death, Eric had written to Cyrus,
the family solicitor, asking him to draw up a will for Helen
leaving the house and land to Laura, her collection of paintings
to Eric and the rest of the estate to Ben, John and Simon, her
brothers, in equal shares. Cyrus prepared a draft will and sent
it to Eric.
When Eric read the draft, he telephoned Cyrus and said ‘I
take it that if any of Helen’s brothers die before her, the
survivors will get all her residuary estate’. Cyrus replied ‘yes’.
Ben, survived by his children, Vicky and Elizabeth, died a week
before Helen.
While Helen was executing the document as her will, she said
to Sally, her good friend and one of her witnesses, that her brothers
were persecuting her and that her father had spoken through one
of the portraits hanging in the gallery, telling her not to leave them
any substantial part of the estate.
The house is valued at death at £1.4 million, the paintings at
£650,000 and the residuary estate at £40,000. Eric is named executor
and is anxious to file for probate as soon as possible.
Advise John and Simon as to the validity and effect of the
dispositions contained in the will and the initial steps they should
consider should they challenge the will.
Ignore any possible claims under the Inheritance (Provision for
Family and Dependants) Act 1975.

Answer plan

This question concerns the general test as to capacity to make a

valid will, the effect of the apparent delusions, knowledge and
approval and suspicious circumstances. In addition, there are
the effects of the predeceased, Helen’s brother. Finally, there is

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 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

the administrative point where one is asked to advise on the

initial steps to be taken in a challenge to the will.

Answer

In order to be admissible to probate, a will must express the

clear intention of the testator (animus testandi) and satisfy the
requirements as to form contained in s 9 of the Wills Act 1837
as amended. There is nothing to suggest any defect in form.
The challenge to the admissibility of the will is based upon the
likely lack of mental capacity of the testatrix at the time of
execution.
There is no statutory definition of the mental capacity required
to make a valid will. The class test to apply is the one enunciated
by Cockburn CJ in Banks v Goodfellow (1870).1 Cockburn CJ said
that the testator must have sound mind, memory and
understanding. That is to say, one must prove that the testator
understood at the time of execution that he was making a will,
was aware of the extent of the property at his disposal and could
appreciate the claims which would normally be made against his
estate. The testator must be free from any disorder of the mind,
such as a delusion, that could bring about a disposal which he
would not have contemplated had he been able to form a clear
animus.
Given the discrepancies in Helen’s estate between the value
of the house and the paintings as against the residuary estate,
the initial challenge by John and Simon could be on the basis of
the second limb of the Cockburn test, that is, that Helen did not
have sound memory. In Wood v Smith (1992), the Court of
Appeal rejected the last will, executed days before the death, on
the basis that the courts were not satisfied that, at the time of
execution of the will, the testator was fully aware of the true
value of his estate. The burden of proving the will rests with the
person applying for the grant (Barry v Butlin (1838)). Where the
will is rational on the face of it, there is a presumption as to full
capacity (Re Fenwick (1972)). The effect of Re Fenwick is to throw
the burden upon those who allege lack of capacity. However, in
a case where there are suspicious circumstances, the burden is
on the person seeking to have the will admitted to probate (Re
Dabbs (2000)).

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Q & A ON SUCCESSION

The court must be satisfied that the testator had knowledge of

the contents of the will and approved the form of the will at the
time of execution (see the dictum of Lord Penzance in Guardhouse
v Blackburn (1866)). Prima facie, execution by the testator indicates
knowledge and approval. However, the fact that the will was
prepared as a result of instructions given by Eric, a principal
beneficiary, provides evidence of suspicion, and on that basis, the
court is more likely to reject the will because of a lack of knowledge
and approval (Wintle v Nye (1959); Re Ticehurst (1973)).2 In Ghana v
Ghana (2000), it was stressed that the presumption that the signing
and reading of a document was sufficient to confirm knowledge
and approval of its contents could not be used where there were
suspicious circumstances.
Strong challenges can therefore be made to the validity of the
will on the basis of the general test in Banks v Goodfellow and a lack
of knowledge and approval based upon suspicion. There is a third
possibility. There is evidence that at the time of execution, it would
appear that Helen was suffering from a delusion.
Where the delusion affects the whole of the form of the will,
the will is inadmissible for want of capacity (Dew v Clark (1826)).3
If the delusion affects only a part, the remainder could be
admissible (Re Bohrmann (1938)). However, in this case, it is likely,
given the discrepancy between the value of the residuary gift and
the devises, that the whole will would be inadmissible.
John and Simon should lodge a caveat against Helen’s estate.4
The effect of the caveat would be to prevent a grant being issued
until John and Simon were notified when they could then bring
prima facie evidence of lack of capacity.
Whether Eric could use the reference to query to the
solicitor the effect of a brother predeceasing as evidence that
he has shown the will to Helen and she approves of the terms
is debatable. The courts take a strong line where there are
suspicious circumstances. In any event, there is still the
evidence of delusion. The effect of Ben’s predeceasing Helen is
that his share of the residue will lapse. There is no evidence of
a gift over and the residue has been given to the three brothers
as tenants in common. 5 Ben’s share would therefore be
property undisposed of by the will and devolve on intestacy
to the surviving blood relatives, namely John and Simon. In
any event, given the strength of evidence to mount a challenge
on the grounds of lack of mental capacity, it is likely that the

12
 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

will would be inadmissible and the whole of Helen’s estate

would devolve on intestacy. The estate would then be divided
three ways: one-third to John, one-third to Simon and one-
third divided between Vicky and Elizabeth, the issue of the
deceased brother Ben.6,7

Notes

1 In Banks v Goodfellow, the court had to consider the admissibility

of a will where the testator had suffered from a long history of
delusions that he was being molested by evil spirits. However,
the court concluded that the delusions did not have any
bearing upon the gifts in the will and therefore the will was
admitted to probate.
2 Re Ticehurst is a good example of a clear change of direction in
the last will which had been effected as a result of an
intermediary, the wife of one of the main beneficiaries.
Although the evidence was given that the testatrix was an
alert person for her age (82), the court concluded that the
circumstances were too suspicious.
3 A person is said to be suffering from a delusion when he
persists in believing something which no rational person
would sustain.
4 For the rules as to procedures on caveats see r 44 of the Non-
Contentious Probate Rules 1987.
5 Section 33 of the Wills Act 1837 as amended is irrelevant here
as s 33 applies to gifts to children and remoter issue and not,
for example, brothers.
6 As a matter of practice, Cyrus should have confirmed Eric’s
instructions as they did not come directly from the testatrix.
Further, if there was any reasonable doubt as to capacity, he
should have taken the advice, in writing, of a medical
practitioner as in Re Wilkes (2000).
7 In Buckenham v Dickinson (1997), the court suggested that
solicitors follow the ‘golden rule’ that a medical practitioner
should be present where there were doubts as to capacity. The
will should be read over to the testator who should be asked
‘open’ questions to establish that he could hear and understand
provisions of a will which was being read aloud.

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Q & A ON SUCCESSION

Question 4

Distinguish between fraud and undue influence as factors affecting

testamentary capacity.

Answer plan

This is a straightforward essay contrasting two vitiating factors

concerning the intention to make a valid will. Undue influence
and fraud should both be defined and both illustrated by reference
to the case law.

Answer

In order to make a valid will the testator must comply with the
formal requirements in s 9 of the Wills Act 1837. In addition, the
testator must have the capacity to form a clear intention to make
the will, the animus testandi. The testator must not only be mentally
capable of forming the intention (Banks v Goodfellow (1870)), but
must also demonstrate that he knew and approved of the contents
of the will (Guardhouse v Blackburn (1866)).
The testator must be able to exercise a free choice in determining
the objects of his bounty, that is to say, the testator must be free
from undue influence or fraud in the making of the will. What is
undue influence? In Wingrove v Wingrove (1885), Sir James Hannen
P said that:

To be undue influence in the eyes of the law there must be—to sum it
up in a word—coercion. The coercion may of course be of different
kinds, it may be in the grossest form, such as actual confinement or
violence; or a person in the last days or hours of life may have become
so weak and feeble that a very little pressure may be sufficient to bring
about the desired result; it may even be, that the mere fact of talking to
him at that stage of an illness and pressing something upon him, may
so fatigue the brain that the sick person may be induced for quietness’
sake to do anything. This would equally be coercion, though not actual
violence.

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 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

In other words, the testator must be made to do that which he

does not desire to do. The law will allow any amount of
importuning in order to encourage receipt of a gift under the will.
However, where importuning or persuasion turns into coercion
or threat, then the gift or the whole will can be set aside on the
grounds of undue influence.
In Hall v Hall (1868), Lord Penzance said that a testator may be
led but not driven. The will must be the offspring of the testator’s
own volition.1
In Hall v Hall, the will was set aside on the basis that the testator
had been subject to a threat and, for the sake of peace and quiet,
had agreed to the terms of the will in favour of his wife, a will
which he did not approve.
The key element therefore is evidence of coercion. So an immoral
influence exercised over the testator by another person would not
constitute undue influence in the absence of evidence of coercion.2
In Biggins v Biggins (2000), the court found that although the
testator was unwell and grief stricken at the time of execution of
the will, there was not sufficient evidence of coercion to establish
undue influence.
In Re Lily Morris (2000), the court accepted the principle that
undue influence can affect lifetime gifts as well as testamentary
instruments. The deceased was an elderly lady suffering from
senile dementia brought on by Alzheimers disease. After the death
of her husband, she was befriended by X and, by agreement, sold
her house to X on payment of £50. She further made extensive
gifts and loans to X and added X as a joint signatory to her building
society account. Her will had left part of her residuary estate to
the Great Ormond Street Hospital, who challenged the validity of
the lifetime transactions. The court found that the circumstances
of the case entitled them to presume that all the transactions had
been procured by the exercise of undue influence and were
consequently set aside.
There is no relationship between undue influence in the law
of wills and the equitable doctrine of undue influence.
Therefore, a person seeking to disapprove a will on the basis of
a particular relationship will be rejected as, for example, the
relationship of priest and parishioner in Parfitt v Lawless (1872).
The relationship of solicitor and client, where the solicitor
receives a benefit under the will, may give rise to rejection by
the courts on the grounds of suspicion, that is, lack of

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Q & A ON SUCCESSION

knowledge and approval, in addition to possible breach of the

professional guidelines laid down by the Law Society. 3
Examples such as Wintle v Nye (1959) and Re A Solicitor (1975)
are authorities on lack of knowledge and approval, not undue
influence. The burden of proving undue influence rests with the
person making the allegation (Craig v Lamoureux (1920)).
Fraud arises where the testator has been misrepresented or
deceived by the beneficiary. There must be evidence that in
some way, the testator was misled. In Butterfield v Scawen, the
testator had revoked a request in favour of a principal
beneficiary owing to a false representation that the beneficiary
had attempted to poison the testator. It would be fraud, for
example, where a clause is inserted in a will before the will is
signed, but without the testator’s knowledge. Fraud can also
arise where there is a deliberate misreading of the will so as to
deliberately omit a reference to a gift in favour of the person
reading the will to the testator, as in Wilson v Joughlin (1866).
Although in Guardhouse v Blackburn, Lord Penzance said that
reading over the will to the testator can amount to proof of
knowledge and approval, where the reading deliberately omits
passages, this can amount to fraud.
A will made as a result of undue influence or fraud is
inadmissible to probate. Where the evidence of undue influence
or fraud only affects a part of the will then the remainder may be
admitted (Allen v McPherson (1847)).4

Notes

1 Lord Penzance in Hall v Hall said: ‘Persuasion, appeals to the

affections or ties of kindred, to a sentiment of gratitude for
past services, or pity for future destitution, or the like—these
are all legitimate, and may be fairly pressed on a testator. On
the other hand, pressure of whatever character, whether acting
on the fears or the hopes, if so exerted as to overpower the
volition without convincing the judgments, is a species of
restraint under which no valid will can be made… In a word,
the testator may be led but not driven; and his will must be
the offspring of his own volition, and not the record of someone

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 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

else’s.’ This last sentence is often quoted to form an essay

question on this topic.
2 Parry and Clark gives a good example of influence falling short
of coercion, therefore influence which would not be considered
undue. For example, a man’s mistress may make use of her
unbounded influence to induce him to make a will in her
favour to the exclusion of his wife and children, but in the
absence of coercion this does not constitute undue influence.
3 A solicitor must not act where his own interests conflict with
the interests of a client or a potential client. The Law Society’s
Guide as to professional conduct states that ‘where a client
intends to make a gift inter vivos or by will to his solicitor or to
the solicitor’s partner, or a member of staff or to the families
of any of them and the gift is of a significant amount, either in
itself, or having regard to the size of the client’s estate, and
the reasonable expectations of prospective beneficiaries, the
solicitor must advise the clients to be independently advised
as to that gift, and if the client declines, must refuse to act.’
4 Parry and Clark cites Betts v Doughty (1879) on the principle
that where a beneficiary under the will of a testator prevents
him by undue influence or fraud from altering the will, or
making a new will, in favour of other persons, the court will
probably impose a trust on the beneficiary for those other
persons. In that situation an equitable remedy is needed
because no remedy is available in a court of probate. See 9th
edn, p 58.

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Q & A ON SUCCESSION

Question 5

To what extent could a court alter the words of a will?

Answer plan

This question addresses the effectiveness of the court where it is

alleged that the will does not reflect the wishes of the testator.
There are three areas to consider:

• omission of words on the basis of lack of knowledge and

approval;
• the power of the court to rectify the will; and
• the court acting as a court of construction.

Answer

Courts are reluctant to interfere with the wording of a will on the

basis that the will, having been signed by the testator and attested,
reflects the last wishes of the testator. However, if words in the
will can be challenged successfully on the basis of lack of
knowledge and approval, the court can omit words and, to a
limited extent, can order rectification of the will.1
In Swords (1952), a codicil was challenged on the ground of lack
of knowledge and approval where the testator had confused the
numbering of the clauses in the will. The courts ordered the
omission of words revoking particular clauses in view of the
inaccuracy between the clauses as stated in the codicil and the
reference in the will. In Re Phelan (1972), the court admitted a series
of codicils in the form of will-forms with the omission of the printed
revocation clauses in the will-forms on the basis that the testator
never applied his mind to those clauses.
A more difficult situation arises where the testator is
deemed to know and approve of technical language used by
drafters. Such technical language will be admitted to probate
even though the drafters were mistaken as to the legal effect.
For example, in Re Horrocks (1939), the use of the word ‘or’
instead of ‘and’ in a gift of residue to ‘charitable or benevolent’

18
 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

objects was the solicitor’s deliberate choice under a mistake as

to the legal effect rather than the result of a typist’s error. Even
where the testator queried the inclusion of a clause and was
wrongly advised, the court has said that the testator is bound
by the clause, as in Collins v Elstone (1893). The inclusion of a
clause on the basis of wrongful legal advice would give rise
today to an action in negligence under the principle in Ross v
Caunters (1980).
If the testator died before 1983, the court could only order
omission of words. There was no power to rectify the will. For
deaths after 31 December 1982, s 20 of the Administration of
Justice Act 1982 enables the court, in limited circumstances, to
order rectification. The power to rectify is limited to where the
will does not reflect the intention of the testator as a
consequence of a clerical error or a failure to understand the
testator’s instructions. A good example of a clerical error
occurred in Re Morris (1971), where there was a typing error in
the numbering of clauses in a subsequent codicil which had the
intention of revoking one particular legacy. The court at that
time could only omit the reference to the number and then seek
to construe the testator’s intention on the basis of lack of
knowledge and approval. Today, if the same facts occurred, the
court could order rectification of the codicil on the basis of a
clerical error. The statutory power to rectify has been considered
by the court in Wordingham v Royal Exchange Trust Co Ltd (1992).
Here the court considered the meaning of ‘clerical error’ and
held that such an error should be construed as an inadvertent
error made in the process of recording the intended words of the
testator in the drafting or transcription of his will. Here the facts
clearly showed that the testatrix intended to include a power of
appointment, which had appeared in earlier wills, in her last
will. The solicitor who drafted the new will failed to include the
power of appointment and the evidence pointed to omission by
way of a clerical error.2
The statutory power is limited, so, for example, if the drafter
understood the instructions from the client but consciously omitted
an intended legacy, s 20 would not apply and the court could only
omit words on the basis of lack of knowledge and approval and
would not be in a position to order rectification.3
A Court of Construction can construe the will as if certain words
had been inserted, omitted or changed if it is clear from the will

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Q & A ON SUCCESSION

itself both that an error has been made in the wording and what
the substance of the intending wording was. The substance of the
intention must come from the will itself ‘from the four corners of
the document’ (Re Whitrick (1957)).4 It must be clear, therefore,
from the instrument what has been omitted from the will. This
does not mean a knowledge of the precise words, but the essence
of the intention of the testator.
So in Hart v Tulk (1852), ‘fourth’ schedule was read as fifth
schedule in accordance with the general intention from the will.
In Re Eacharach’s WT (1959), the words of the will were re-arranged
in accordance with the general intention. Gifts in a will may be
irreconcilable. In this situation, the court has to glean the intention
of the testator by looking at the will as a whole. In Re Alexander’s
WT (1948), the will bequeathed a bracelet to A and later in the
same will bequeathed the same bracelet to B. The court concluded
that each legatee was entitled to half the value of the bracelet.
Parry and Clark emphasises that the power of the court to
supply, omit or change words as part of the process of construction
is very limited. The substance of the intended wording must come
from the will itself.
The problems that can arise in relation to the limited power to
alter the will emphasise the importance of sound legal advice and
professionally drawn wills, provided care is taken in the office
when the will or codicil is transcribed to its final form ready for
execution.

Notes

1 Parry and Clark points out that it has been held the court does
not order the omission of words, of which the testator did not
know and approve, if this would alter the sense of the rest of
the will (see Re Horrocks (1939)) and an article by Lee, WA (1969)
33 Conveyancer New Series, pp 329–34.
2 In Wordingham, the Deputy Judge concluded by saying that if
he was wrong in the interpretation of s 20(1)(a), then he would
have been minded to strike down the whole of the will as not
being made with knowledge and approval.
3 Parry and Clark point out that the power to rectify or power
to omit do not provide any remedy in three situations:

20
 VALIDITY OF WILLS: NATURE OF WILLS AND THE MENTAL ELEMENT

(a) the testator’s failure to appreciate the legal effect of the

wordsused in his will; or
(b) uncertainty as to the meaning of his intended wording; or
(c) a lacuna in the will, because he never had any intention
relevant to the event which actually occurred.

4 In Re Whitrick (1957), the testatrix by her will left her entire

estate to her husband and provided that ‘In the event of my
husband…and myself both dying at the same time’ her estate
should be held upon trust for X, Y and Z equally. The testatrix’s
husband predeceased her and consequently, according to the
literal meaning of the words used, the gift to X, Y and Z failed
and the testatrix’s entire estate passed on intestacy. The Court
of Appeal held that it was clear from the will as a whole that
the testatrix intended, by means of the gift to X, Y and Z, to
provide for the contingency of her husband not surviving her.
The will was therefore read as if it had directed that X, Y and
Z were to take in the event of the husband predeceasing the
testatrix, as well as in the event of them both dying at the
same time.

21
 CHAPTER 2

VALIDITY OF WILLS:
FORMAL REQUIREMENTS

Introduction

The requirements as to formal validity are contained in s 9 of the

Wills Act 1837, as amended by the Administration of Justice
Act 1982.
A careful study should be made of the precise requirements of
s 9, but the key ones are that the will should be in writing, signed
or acknowledged by the testator in the joint presence of two
witnesses and then signed or acknowledged by the witnesses in
the presence of the testator. There is no general presumption (in
the absence of a proper attestation clause) that these requirements
have been satisfied. However, the courts have been increasingly
willing to apply the evidential presumption of omnia praesumuntur
rite et solemniter esse acta, as seen in Weatherhill v Pearce (1995), Causer
v Causer (1996) and Re Chapman (1999).
Section 9 has been much litigated and there is a considerable
body of case law in particular on what comprises a valid signature
which is intended to give effect to a will and what are the mental
and physical requirements of ‘presence’.
In relation to signatures, the courts’ attitude has been flexible
and, with the exception of the possibly harsh ruling in Re Colling
(1972), anything which represents the ‘best the testator could do’
as the intended signature would seem to be effective (Re Chalcraft
(1948) and Wood v Smith (1992)).
As for ‘presence’, the requirement seems to be that, physically,
a person must be in a position to see the signing (the ‘line of sight’
test) and mentally must be conscious of the act being done. Brown
v Skirrow (1902) is an excellent example of the operation of both
rules.

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Q & A ON SUCCESSION

Question 6

In 1992, Tim wrote a letter addressed to his son John saying that
he wished to put his affairs in order. The letter contained various
good wishes to friends, together with a series of gifts of money to
friends and a request that the rest of this property should be
divided in three equal parts between Tim’s daughter Susan, his
sister Betty and John.
The letter headed ‘from Tim Wood’ is unsigned. Tim shows the
letter to John who says, ‘I think this should be witnessed’. Tim
then calls in his neighbours Bill and Cath, saying, ‘I would like
you to authenticate this letter’. Bill replies, ‘Should you sign?’.
Tim says, ‘There is my name at the top’. Bill, Cath and John then
sign their names on the back of the paper.
Tim has died and Susan is claiming that her father’s estate
should be distributed on intestacy. Betty consults you as to the
validity of the letter.
Advise Betty.

Answer plan

The question deals with the preliminary point as to the nature

of a testamentary document. Thereafter, the question is
concerned with the formal requirements for a valid will: in
particular, an examination of the position of signature in the
light of the revised s 9 of the Wills Act 1837 as amended by s 17
of the Administration of Justice Act 1982 and the interpretation
in Wood v Smith (1992).

Answer

If Tim has died intestate, then the only people entitled are his
children John and Susan, who would take the whole of the estate
in equal shares on the statutory trusts (s 47(1)(i) of the
Administration of Estates Act 1925). The only way in which Betty
could share is by establishing that the letter is admissible as a will.
In order to do this, Betty would have to establish that the letter
complied with the formal requirements as laid down by s 9 of the

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 VALIDITY OF WILLS: FORMAL REQUIREMENTS

Wills Act 1837, as amended by s 17 the Administration of Justice

Act 1982.
In order to be admissible, a will must be in writing (the only
exception is the dispensing with formalities where the
circumstances fall within s 11 of the Wills Act 1837 relating to
privilege wills, which are not relevant here). The document must
also convey testamentary intention. The document need not be
described as a will so long as it contains disposition intended to
take effect on death and is executed in the manner laid down by
the Wills Act. In Re Berger (1989), the court admitted a document
written in Hebrew known as a zavah where the document, apart
from containing a series of religious exhortations, also contained
dispositions and was signed and attested in accordance with s 9.
On this basis, the court admitted the document as a valid will.1
A will can be expressed in the form of a letter (Re Cook (I960)).
Here, Tim has expressed that he wished to put his affairs in order
and the letter contains various dispositions. On the authority of
Re Berger (1989), the letter would be accepted as a will. The problem
of admissibility then turns upon whether he intended the letter to
be his will and whether it is correctly executed in accordance with
the formal requirements of s 9.
In relation to his intention the question is whether he intended
the letter to from his wishes to be acted upon on his death. See
Corbett v Newey (1995). The courts have shown a fair degree of
flexibility in this area. In Re Chapman (1999), a document headed
‘Outline Will Provisions’ was held to be a valid will as it was
properly signed and witnessed.
As to the formal requirements, a will must be signed by the
testator in such a way that the testator intended his signature to
give effect to the will and that signature must be made or
acknowledged by the testator in the presence of two or more
witnesses who either attest and sign or acknowledge their
signatures in the presence of the testator (s 9). Has Tim correctly
signed the will? Under the terms of the original s 9 of the Wills
Act 1837, the will had to be signed at the foot or end thereof.
Problems arose as to the literal interpretation of these words and
the 1852 Amendment Act referred to the signature being placed,
inter alia, at or after, under or beside, or opposite the end of the
will so that it should be apparent on the face of the will that the
testator intended to give effect to his signature. The court would
not accept a signature placed at the top of the will (Re Stalman

25
Q & A ON SUCCESSION

(1931)), as the 1852 Act said that nothing following or under the
signature shall be admissible. The aim of the reform of formal
validity expressed in the revised s 9 in the 1982 Administration of
Justice Act is to achieve greater flexibility, but at the same time
protecting against possible fraud.
In order to establish admissibility, Betty would be relying upon
the Court of Appeal decision in Wood v Smith (1992). The facts
here are similar to the question in Wood v Smith, where the testator
wrote out a document starting, ‘I Percy Winterbone…’. When the
testator asked the witnesses to sign, one witness pointed out that
the testator had not signed and he replied ‘Yes I have’, pointing to
his name at the top. At first instance, the court refused to accept
that the will complied with s 9. Although a signature can comprise
any form Re Cook (I960),2 it need not necessarily be the name of
the testator.3 The court in Wood v Smith said that at the time the
testator signed, namely at the top, the document did not contain
any dispositions, therefore, one could not describe it as a will. On
appeal, Scott LJ did not agree. In between the first instance decision
and the hearing by the Court of Appeal, Re White (1990) had been
reported and here the court (Andrew Park QC sitting as a Deputy
Judge) accepted that one could have a signing at the top, and
thereafter the dispositions and a statement by the witnesses
provided the exercise was all in one operation.4 Scott LJ in Wood v
Smith said that the object of Parliament was to simplify execution
and the requirements in s 9(a) and (b) that the will should be in
writing, signed by the testator and that it appears that the testator
intended by his signature to give effect of the will, are
complementary. He said that the object of the signature of the
testator is to authenticate the written document in question and
that if the writing of the will and the appending of the signature
are all in one operation, it does not matter whereabouts on the
document or when in the course of writing the signature is
appended.
On the authority of Wood v Smith, provided Tim had the clear
intention to make the will, then his heading at the top would be
accepted as a signature to give effect to the will. There is, however,
a further problem that the signature must be attested by the
witnesses in the presence of the testator. It is clear that all the parties
are present and there is no specific requirement as to where on
the will the witnesses should sign, provided there is evidence that
they are attesting to assigning or there is an acknowledgment by

26
 VALIDITY OF WILLS: FORMAL REQUIREMENTS

the testator. Here, the comment by Bill followed by Tim’s reply

indicates that Tim has acknowledged his name on the will and
provided the witnesses can see the name, this would be accepted
as a valid acknowledgment (Re Dunstan (1882)). However, one of
the witnesses is Tim’s son John, a beneficiary under the alleged
will. By s 15 of the Wills Act 1837, the validity of the will is
unaffected by a witness beneficiary but that beneficiary cannot
claim the gift under the will. However, following the decision of
the Court of Appeal in Re Bravda (1968), s 1 of the Wills Act 1968
says that where there are at least two independent witnesses, that
is, witnesses who do not take a benefit under the document, any
additional signing can be disregarded as being superfluous.
Therefore, should Betty be successful in her claim to admit the
document as a will, the residuary estate would be split in three
ways and John would receive his share.

Notes

1 In Re Berger, the court relied upon the propositions of fact and

ignored the issue as to whether the testator had the requisite
animus testandi. Mustill LJ referred to a presumption of animus
if the document has the necessary dispose of effect and is duly
executed. However, he added that Mr Berger would have been
startled to discover that the document was enforceable in the
probate court. This appears to negate the presumption of
animus rather than support it.
2 In Re Cook, the letter was addressed to the testatrix’s children
and commenced, ‘I Emmie Cook…’ and was signed at the end
‘your loving mother’. The court accepted ‘your loving mother’
as the signature which could be identified by reference to the
commencement.
3 Re Sperling illustrates that a witness need not sign his or her
own name. Here the witness signed ‘servant to Mr Sperling’.
The court accepted this as a valid attestation, since the servant
could be easily identified.
4 In Re White, the testator made a will in 1981. In 1984, the year
before he died, he asked a friend to make certain alterations
to the percentages of residuary bequests which numbered 18
separate gifts in the original will. When the alterations had

27
Q & A ON SUCCESSION

been made, the testator then wrote on the original will

‘alterations to will of 14 December 1981’ and below that, he
wrote ‘witnesses’. The witnesses signed but the testator did
not sign again. The alterations were therefore inadmissible for
they did not comply with s 21 of the Wills Act 1837 as not
being executed and attested by both the testator and the
witnesses. The alternative argument was that the exercise in
1984 amounted to the making of a new will. This raised the
question as to whether the will had been signed by the testator.
The court concluded that the alleged 1984 will was
conceptually a different will and the signature four years
earlier did not meet the requirements in s 9(a). The court did
say that if the exercise were all in one operation, then the
signature could have been accepted. This was the point that
was taken up by Scott LJ in Wood v Smith.
Although the Court of Appeal in Wood v Smith accepted the
validity of the signing, the court still rejected the will for want
of capacity holding that the testator failed the second limb of
the test in Banks v Goodfellow, namely that he did not appreciate
at the time of execution the extent of the property at his disposal.

Question 7
Patrick made a will in 1980 by which he left his property to be
divided between his wife, Sarah, and his daughter, Ellen. Earlier
this year, incensed by what he regarded as Ellen’s wayward
behaviour, Patrick decided to make a new will leaving all his
property to his wife and the local cats’ home.
Patrick took his new will to the golf club and asked two of his
friends, Tom and Jerry, to witness it. He started to sign the will,
but before the signature was completed, Patrick suffered a heart
attack and collapsed. Tom tried to revive him whilst Jerry rushed
outside to telephone for a doctor. Before Jerry returned, Patrick
revived and with Tom’s help finished his signature. Tom
immediately signed as a witness and on Jerry’s return, Tom said:
‘Hurry up and sign before it’s too late.’ Patrick nodded weakly
and Jerry signed. Patrick was then rushed to hospital where he
died later that day.
Discuss the validity of the will.

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 VALIDITY OF WILLS: FORMAL REQUIREMENTS

Answer plan

This problem involves consideration of the rules as to formal

validity in s 9 of the Wills Act 1837. Also concerned are issues of
capacity.
This is a popular area in the law of succession. The danger, when
faced with problems on popular areas, is a tendency to write what
one knows about the entire topic rather than applying the relevant
law to the facts of the question.

Answer

The major consideration is whether the latest will is valid. Ellen,

the daughter, will want to argue that this will is invalid and
inadmissible to probate, for she would then be able to take under
the terms of the will made in 1980.
Is this latest will valid under the terms of s 9 of the Wills Act
1837? The formal requirements set out in s 9 are that the will should
be signed or acknowledged by the testator in the presence of two
witnesses present at the same time. The facts show that Patrick
started to sign the will, but before the signature was completed,
he suffered a heart attack and collapsed. Further, he went on to
complete his signature, but before the second witness, Jerry, had
returned. In order to sign a will in the presence of the witnesses,
the testator must do all he can. This is contrasting the cases of Re
Colling (1972) and In The Goods of Chalcraft (1948). In Re Colling,
the testator had started to sign when one witness was called away
from the bedside in such a way that he was no longer ‘in the
presence of the testator. The testator continued to sign his name
in the presence of the remaining witness and this witness signed
before the other witness returned. The will was inadmissible to
probate, as it had not been ‘signed’ in the presence of two witnesses
present at the same time. This is to be contrasted with the Chalcraft
case, where the testatrix started to sign her name in the presence
of the witnesses, but could not continue owing to declining
health. The court ruled that the testatrix had done all she could
in signing her name and therefore the will was admissible.

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Q & A ON SUCCESSION

Here we are told that Patrick revived and with Tom’s help finished
his signature.
Although a will can be signed by someone else in the presence
of the testator and on the testator’s direction, the problem here is
that the other witness, Jerry, had not returned. At that stage,
therefore, the will would be inadmissible to probate by virtue of s
9, para B.
The interested parties propounding the latest will as valid
could then argue that the testator’s signature has been
acknowledged in the presence of the witnesses. Section 9
provides that the testator can acknowledge his signature in the
presence of two witnesses. The witnesses should then sign the
will or acknowledge their signatures in the presence of the
testator. (This is an application of the amended s 9 by s 17 of the
Administration of Justice Act 1982 which seeks to overcome the
‘mechanical’ failure of wills as occurred in Re Colling.) The court
would have to consider whether Patrick’s weak response to Tom
saying ‘Hurry up and sign before it is too late’ is a sufficient
acknowledgment in the presence of the two witnesses. In order for
there to be a valid acknowledgment, the witnesses must be in a
position to see the signature of the testator (Re Groffman (1969))
and the testator must give some indication either by words or
gestures that that is his signature. According to Weatherhill v Pearce
(1995), no particular form of acknowledgment is required:

…it is sufficient to proffer a document which all concerned know is a

will for the witnesses to sign, and no express declaration is necessary.

If it is accepted that at this point, there is a valid signature by

the testator, s 9 requires that the witnesses thereafter sign or
acknowledge in the presence of the testator. It is important to
note the order in which the events must occur for execution to
be considered valid. In the instant case, there is no difficulty
with Jerry, who has signed in the presence of Patrick, but Tom
had already signed as a witness before Patrick’s signature was
valid. It must therefore be shown that Tom has acknowledged
his previously made signature. If one accepts the view that
merely offering the document is a sufficient form of
acknowledgment, then Tom’s actions will be enough. Given the

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 VALIDITY OF WILLS: FORMAL REQUIREMENTS

approach in Weatherhill v Pearce (1995), Couser v Couser (1996)

and Re Chapman (1999), it is probable that the will is valid.
The latest will could be challenged for want of formal
validity, as explained above. In addition, there is a possibility of
a challenge on the basis of capacity in view of Patrick suffering
a suspected heart attack and being weak when the purported
acknowledgment occurs. One would have to show that Patrick
fell within the test as to sound mind, memory and
understanding, formulated in Banks v Goodfellow (1870). Even if
there was some doubt as to capacity at the time of execution, it
is possible the rule in Parker v Felgate (1883) could be invoked if
it was the case that the latest will had been prepared by a
solicitor and it could be proved that Patrick reasonably believed
at the time of execution that the will accorded with the
instructions he had given.

Question 8

Last year, Alan, a bachelor aged 78, whilst recovering from illness,
refused the advice of his sister May that he should make a will.
Alan told her: ‘I haven’t much to leave and in any event it will all
go to you and our Ken.’ Ken is the only child of Alan’s deceased
brother Tim. May resented this as she was not on good terms with
Ken. Six months ago, Alan won £300,000 on the national lottery.
Alan then suffered a stroke which left him partially paralysed and
unable to write. He asks May to prepare a will leaving his collection
of sporting prints to the local golf club and the remainder equally
between May and Ken.
May uses a will form and consults a book of will precedents
from the library. After the gift of the prints, there are a series of
complicated clauses which have the effect of giving more of the
residue to May. The form also appoints May as executrix.
Alan reads through the form in the presence of May and two
friends. The form contains a printed revocation clause. May has
written in Alan’s name. May asks him if it is all right. Alan replies:
‘I think so.’ May then points to the attestation and Alan puts a tick
against his name. May is then called to answer the door to visitors.
When they have gone, Alan tells her the friends had signed as
witnesses and the will is locked in his deed box.

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Q & A ON SUCCESSION

Alan died last week. May finds that Ken’s name has been added
alongside her name as executor. Ken is working overseas on a
contract expected to last six months. When he learns of the
contents, he is unhappy about the unequal split of the residue.
May is anxious to prove the will as soon as possible. Further,
representatives of the golf club want the will to be proved quickly
as the prints prove to be valuable and the club needs funds to
modernise the clubhouse.
Advise Ken on the validity of the will.

Answer plan

The question combines the areas of capacity to make a valid will

with the formal requirements in s 9 of the Wills Act 1837. There is
the general test as to capacity set out in Banks v Goodfellow (1870)
together with the general proposition that the testator must know
and approve of the contents of the will. Knowledge and approval
can be challenged on the basis of suspicion. In addition, probate
may be refused for failure to comply with the formalities in s 9.
The query is, if the will is in accordance with s 9, could it still fail
wholly for want of capacity or could the gift to the golfclub be
valid and the remainder fail? The court could query the insertion
of Ken’s name as executor; is the insertion attested in accordance
with s 9?

Answer

May will be anxious to prove the will as the last wishes of Alan.
The court will query the apparent additional appointment of
Ken as executor. Is the insertion attested in accordance with s 9
of the Wills Act 1837? In practice, the court will accept the
initials of the testator and the witnesses. Could Alan add his
initials anyway, given that he could not sign his name to the will
form, but put a tick against his name? If there is no initialling,
then there would have to be proof that the name was added at
the time of execution. It was not done when May pointed to
Alan’s name. If it was added when she left the room and before
the witnesses signed, did Alan acknowledge the insertion? The

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 VALIDITY OF WILLS: FORMAL REQUIREMENTS

court would require affidavit evidence as to proof, sworn by the

two friends who acted as witnesses. In any event, would the
court accept that Ken could act as an executor now, given that
he is working on a contract overseas? If the appointment is
valid, it is more likely power would be reserved for Ken to act
should he return. This presupposes Alan had the intention to
appoint May as executor since he did not include this in his
original instructions. May could argue he had read the will and
seen the appointment.
Ken should be advised that the will could be challenged for
want of capacity. The starting point is the general test laid down
by Cockburn CJ in Banks v Goodfellow (1870). At the time of
execution of the will, did Alan have sound mind, memory and
understanding? That is to say, did he understand he was
making a will? Yes, he had given instructions and had
testamentary intent. Did he appreciate the property at his
disposal? This does not mean he had to know in detail the value
of his assets: it is sufficient if it can be demonstrated he knew
whether he was wealthy or of modest means. Here it would
appear he appreciates the value of his estate save a possible
query as to whether he knew the true value of the gift to the golf
club. Did he intend to leave the club a high value gift? The third
limb of the Cockburn CJ test is one of understanding: did Alan
consider the persons one would expect him to consider? The
answer here is clearly yes, as he leaves the bulk of the estate to
his surviving close relatives.
The issue as to capacity here is the discrepancy between
wanting to leave the residue equally between May and Ken and
the actual result where more is left to May. The problem for May
is Ken could challenge the will on the general ground that Alan
lacked the requisite knowledge and approval. Lord Penzance in
Guardhouse v Blackburn (1866) stated the propositions for the
court to consider where the will is put to proof. The court must
be satisfied the testator knew and approved of the contents of
the will. Prima facie, execution by the testator indicates
knowledge and approval unless there is evidence of suspicious
circumstances. The testator must have intended the document
to take effect as a will, that is, to dispose of property on death.
There must be no fraud. Here, Alan intended the document to
be his will. The fact he read over the will would be prima facie
evidence of knowledge and approval. However, the court will

33
Q & A ON SUCCESSION

weigh the complexity of the will together with evidence of the

state of health and age of the testator (Re Morris (1971)). In Re
Morris, Latey J admitted that the question of determining
knowledge and approval is not an easy one and, in past cases,
has produced mental gymnastics. Was the attempt at drafting
by May genuine? Did she appreciate the true meaning of the
complicated clauses? If she did not understand them, could
Alan? Is he bound by what he has signed, as in Coffins v Elstone?
The strongest argument Ken could apply is one of suspicion
given that May has prepared the will form and she is a major
beneficiary.
May would have a problem countering the view of the court
where a beneficiary is instrumental in preparing the will as
expressed by Parke B in Barry v Butlin (1838), who said that, in
such circumstances, the court should be vigilant in examining
the evidence. In Fulton v Andrew (1875), the testator made a will
in 1870 which was in the handwriting of one of his executors, W.
The will contained long list of legacies, including one to W, and
the residue equally between W and A, the other executor.
Evidence showed that the will had been left with the testator a
few days before execution. (The argument being that the
testator had opportunity in that time to consider the will and
give approval.) Further evidence revealed there were
discrepancies between the testator’s instructions and the will.
The court refused probate of that part of the will relating to the
disposal of the residue. The golf club could use the decision in
Fulton v Andrew to contend that although the gift of the residue
should be doubted on the ground of suspicion, the legacy to the
club should stand. Ken and May would share the reminder of
the estate on the resulting partial intestacy. However, Ken could
argue that, given Alan’s age and state of health, coupled with
the value of the collection, did Alan really intend to leave such
a large legacy to the club? Ken would therefore be combining
the general test as to capacity with the strong line the court
takes where there are suspicious circumstances. A more recent
case on suspicion, Re Ticehurst (1973), would support the
argument to refuse probate of the whole will where the will was
prepared with the assistance of the spouse of a specific legatee.
The degree of suspicion will vary according to the
circumstances of the case (Wintle v Nye (1959) HL). Wintle v Nye
shows that the onus of proof where there is suspicion rests with

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 VALIDITY OF WILLS: FORMAL REQUIREMENTS

the person propounding the will. In this case, the burden will
fall on May to show the will does represent the last, free wishes
of the testator.
The will could be challenged on the grounds that it does not
comply with the requirements as to form in s 9 of the Wills Act
1837. Assuming the two friends have signed as witnesses in the
presence of Alan, the problem is whether Alan has validly
executed the will. What does amount to signature? A testator
does not have to sign his name, the court will accept initials (In
Bonis Christian (1849)) and a thumb print (In Bonis Finn (1935)).
The problem concerns the placing of the signature. Prior to the
1982 amendments, s 9 was strict as to the placing of the
signature so that, for example, any words following or under
the signature were inadmissible (see Re Stalman (1931)).
However, s 9(b) now reads: ‘…the testator intended by his
signature to give effect to the will.’ Following the change made
by s 17 of the Administration of Justice Act 1982, the courts have
demonstrated flexibility in interpreting this sub-section. In Wood
v Smith (1992), the Court of Appeal accepted as a signature the
handwriting of the testator when he wrote his name at the start
of the document. (The will was inadmissible for want of
capacity.) In Weatherhill v Pearce (1994), the court applied Wood
v Smith and accepted as a signature the name of the testatrix
where she had written her name in the attestation clause. The
problem here is Alan has not written his name. May would have
to argue that the tick against Alan’s name is a signature. She
could not argue the tick is an acknowledgment of the will, for
to acknowledge, there must be a signature and Alan did not
write his name, May did.
Although May would be hard pressed to overcome this
degree of suspicion, the golf club could still be arguing the will
should be admitted to give effect to the legacy, relying on Fulton
v Andrew. Who would administer the estate? Is the appointment
of May as executor valid? Evidence could be given by the
witnesses and May as to the reading of the will and Alan’s
failing to object to her inclusion. Further, is the appointment of
Ken valid? Assuming the insertion is not initialled to comply
with s 20 of the Wills Act 1837, the witnesses could be put to
proof as to whether the name was written in at the time of
execution. If the appointment of Ken is valid, would he act
given he is working abroad? The appointment of May could be

35
Q & A ON SUCCESSION

accepted with power reserved for Ken to prove should he

return. If the appointments are not valid and the will fails
wholly or in part, May and Ken would be entitled to apply for
a grant of administration under r 22 of the Non-Contentious
Probate Rules 1987. The grant would either be administration
(total intestacy) or administration with will annexed if, say, the
gift to the golf club was ruled to be valid.

36
 CHAPTER 3

REVOCATION AND
ALTERATIONS

Introduction

A will may be revoked in three ways:

• by a later will or codicil or duly executed writing—s 20 of the

Wills Act 1837;
• by destruction—s 20 of the Wills Act 1837;
• by marriage—s 18 of the Wills Act 1837.

Most professionally drawn wills contain an express clause

revoking all former wills. If a later will does not contain an express
clause, it impliedly revokes a former one to the extent that it is
either inconsistent with the provisions of the former will or merely
repeats its provisions. The availability of revocation by duly
executed writing enables revocation by a document (normally a
letter) which, whilst not a will or codicil in itself, shows an express
intention to revoke.
Destruction must be physical destruction by the testator or some
other person in his presence and by his direction. It must be
accompanied by an intention to revoke (animus revocandi). If a
sufficiently significant part of a will is destroyed, the whole will is
revoked, otherwise only the part destroyed is revoked.
Marriage, including a voidable marriage, revokes a will unless
the will was made in the expectation of marriage to a particular
person in accordance with s 18(3) of the Wills Act. This amended
section was introduced to overcome the difficulties caused by the
decision in Re Coleman (1976) which still applies, however, to wills
made prior to 1983.
Divorce does not revoke a will but s 18A of the Wills Act provides
that on divorce, gifts to a former spouse will fail, as will any
appointment of the former spouse as executor. The wording of
this section caused particular problems as shown by Re Sinclair
(1985) and was subsequently amended by the Law Reform
(Succession) Act 1995.

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Q & A ON SUCCESSION

Alterations to a will are governed by s 21 of the Wills Act.

Unattested alterations are presumed made after execution of the
will and are therefore presumed void. If the original wording is
apparent by natural means, a grant will be made of that wording.
If the alteration is in effect a total obliteration, it acts as a revocation
of the parts obliterated.
Difficult issues may be involved in relation to a testator’s
intention when doing an act of revocation. In early cases, the courts
were inclined to consider favourably the doctrine of conditional
revocation (also known as dependant relative revocation). By this
doctrine, revocation is ineffective unless and until some condition
has been satisfied. Following Re Jones (1976), the ambit of the
doctrine seems to have been reduced as, rather than imply that a
condition was present, the courts now seem to look for strong
evidence of one.

Question 9

This question combines issues of formalities (as seen in Chapter

2) with problems relating to revocation.
In 1984, Phil, prior to leaving to work in the US, made a will
leaving all his property to his parents. In 1986, whilst working in
New York, he met and married Annie. In 1987, they both returned
to settle in England and, later that year, Phil wrote on the back of
his will, ‘My estate is now to be divided in equal shares between
Annie and my parents Ben and Lucy Moon’. He initialled the end
of this paragraph in the presence of his friend William, then signed
his name.
The next day, he asked William and William’s wife, Joan, to
call in and, producing the will, pointed to what he had written
and said to Joan, ‘I think you had better witness this as well’.
Phil turned to William who nodded in agreement. Joan then
added her name.
In 1990, Phil and Annie were divorced. Phil erroneously blamed
his father Ben for the break up of his marriage and crossed Ben’s
name out of the will.
In 1992, Phil and Annie were reconciled. Later that year, Phil
wrote out the following, ‘I Phil Moon leave my estate in equal
shares between Annie and my mother Lucy’. He then asked

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 REVOCATION AND ALTERATIONS

William and Joan to call in and, pointing to the paper, said, ‘I want
to do what is right, please witness this’. William and Joan then
added their names. Joan then said that she thought Phil was being
unfair to his father, and after some thought, Phil said ‘You’re right’
and he wrote in the words, ‘my father Ben’, after the reference to
Annie. He then turned to William and Joan and said, ‘Do you think
that’s right?’ William and Joan both said, ‘Yes’.
Advise upon the distribution of the estate.

Answer plan

This question involves consideration of the effect of s 18 and 18(a)

of the Wills Act, revocation by marriage and the effect of divorce.
In addition, a consideration of revocation under s 20 of the Wills
Act 1837 coupled with an examination of the formal requirements
in the signing of a will by the testator, or his acknowledgment and
the attestation by the witnesses. These provisions in s 9 of the
Wills Act 1837 need to be considered in the light of the
interpretation in Wood v Smith (1992).

Answer

One way to approach a long question like this is to take the order
of events from the commencement and comment on each stage of
the moves made by the testator, Phil.
One can assume, since there is no other reference to the contrary,
that the 1984 will is properly executed and on the basis of that
will Phil’s parents would take all the property. The effect of
marriage to Annie, which would be recognised by the English
courts (Re Roberts (1978)), would be to revoke the will of 1984 (s 18
of the Wills Act 1837, as amended by s 18 of the Administration of
Justice Act 1982).
One would then consider the situation later in 1987
concerning the writing on the back of the will. The writing
cannot be a revival of the 1984 will for, although revival can be
effected by re-execution of the instrument, s 22 of the Wills Act
1837 as applied in the estate of Davis (1952), the writing does not
repeat the will of 1984, but revokes it in part by dividing the

39
Q & A ON SUCCESSION

estate, now in three parts, between Annie and Phil’s parents. In

order to consider the paper as an admissible testamentary
instrument, one would have to argue that the paragraph added
in 1987 is a new will. One then has to consider the question, has
this been correctly executed and attested? There is no doubt that
the initialling by Phil at the end of the paragraph would amount
to a signature within s 9(a) of the Wills Act 1837 (see, for
example, In the Goods of Christian (1849)). Further, one can say
that by the initialling, Phil intended to give effect to the will
within s 9(b). However, the signing does not comply with s 9(c)
in that there is only one witness present.
The only way in which one could argue that the 1987 will
would be an administrable testamentary instrument would be
to establish a valid acknowledgment by Phil the next day, the
acknowledgment being followed by a valid attestation. Has this
happened? One would have to argue that by pointing to what
he had written, this could amount to a valid acknowledgment,
provided the two witnesses, William and Joan, were in a
position to see Phil’s initials, applying Re Gunstan (1882). Joan
has added her name as a witness; therefore, one can argue that
she has attested to the acknowledgment by her signing thereby
complying with s 9(d). The issue then would be whether
William has, by nodding in response to Phil’s comment, validly
acknowledged his signature as a witness thereby complying
with s 9 as amended by s 17 of the Administration of Justice Act
1982. If this is the case, then at that stage, the paragraph would
be admissible as a valid will.
One would then turn to the situation in 1990 following the
divorce. The effect of a decree absolute would cause the gift of
one-third of the residue to Annie to lapse (s 18(a) of the Wills Act
1837). The gift of the residue to the three parties in the will of
1987 is a gift to them as tenants in common; therefore, since
there is no gift over in default, Annie’s share would lapse and
devolve on a partial intestacy. There is no mention in the
question of any issue of Phil; therefore, the lapsed share would
pass equally to Phil’s surviving parents, Ben and Lucy. Ben and
Lucy would therefore take two-thirds of the estate under the
1987 will and the remaining one-third as on a partial intestacy.
The crossing out of Ben’s name by Phil would not effect this
distribution and this would amount to an unattested alteration
within s 21 of the Wills Act 1837. The extent of the crossing out

40
 REVOCATION AND ALTERATIONS

is not made clear and one would have to adduce what was
‘apparent on the face of the instrument’ to try to determine the
reference to Ben’s name.
Following the reconciliation in 1992, one would finally have
to consider whether the writing by Phil amounts to a valid will.
Clearly, the words show evidence of testamentary intention. The
question again arises as to whether this document is validly
executed in accordance with s 9. There is no indication to say
that Phil has signed the will. The only reference is to his name
at the commencement. Since the will is a holograph will, that is
to say, it is under Phil’s own hand, the writing of ‘I Phil Moon’
could amount to a valid signature by Phil as interpreted in Wood
v Smith. The facts suggest that he wrote the words out alone.
When he does call in William and Joan, his words could amount
to a valid acknowledgment, provided William and Joan could
see his name at the top (Re Gunstan). On the authority of Wood
v Smith, one could argue that Phil’s estate would then be
divided equally between Annie and Lucy. The final problem is
whether the estate could be divided three ways following the
insertion of Ben’s name. The issue here would be how far the
court would be prepared to be flexible in interpreting the
wording of s 21 of the Wills Act. Following Phil’s death,
evidence could be adduced by William and Joan that the
alteration was made at the time. The problem is that alterations
have to be executed and attested. The difficulty here would be
that the acknowledgment by Phil of his writing in the presence
of William and Joan preceded his writing in of Ben’s name and
therefore can one say that the alteration has been executed.
There is no doubt that it has been attested and it would depend
upon the view of the court as to how liberal an interpretation
the court is prepared to make in the spirit of the changes
effected by the amendments to s 9 and given the interpretations
and commentary in Wood v Smith and Re White (1990).

Question 10

Paul married Helen in 1974. They have one son, Dan, born in 1977.
In 1984, Paul made a will leaving everything to Helen. In 1988,
Helen divorced Paul after he had left her to go and live with Susan.

41
Q & A ON SUCCESSION

Paul has now died. Disregarding the possibility of any claims under
the Inheritance (Provision for Family and Dependants) Act 1975,
advise the disposition of Paul’s estate on each of the following
alternative hypotheses:

• Paul made a new will in April 1989 leaving Blackacre to Susan

but containing no other provision;
• Paul made a new will in April 1989 leaving Blackacre to ‘my
wife Susan’. The will contained no other provision. He married
Susan in the May of 1989;
• Paul made a new will in 1989. The new will expressly revoked
the 1984 will and left all his property to Susan (in this case, he
did not marry Susan, but remained living with her until his
death). In 1992, after a discussion one evening with a friend,
he tore up the 1989 will saying, ‘I don’t need a will; Susan will
get all my property anyway’.

Answer plan

The purpose of this question is to consider various methods of

revocation. In particular: the effect of the divorce upon the 1984
will; the distribution of the property which would create a partial
intestacy; the effect of the marriage upon the 1989 will; and finally,
one would have to consider the doctrine of dependent relative
revocation.

Answer

One would assume in a question of this nature that the wills

referred to are all validly executed in accordance with s 9 of the
Wills Act 1837. The will of 1984 is straightforward. The issue is the
effect of the divorce in 1988. In the case of deaths on or after the 1
January 1983, s 18(a)(i) of the Wills Act 1837 created by s 18(2) of
the Administration of Justice Act 1982 provides that where a
testator has made a will and subsequently the marriage is dissolved
any devise or bequest to the former spouse shall lapse.1
In the case of part (a), there is no mention in the will of April
1989 that the will contained an express revocation clause.

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 REVOCATION AND ALTERATIONS

Assuming the will does not contain such a clause, the 1989 will
revokes the will of 1984 to the extent of the gift of Blackacre to
Susan. The 1989 will does not contain any other provision;
therefore, one would fall back to the earlier will of 1984. However,
since that will gave all the property to Helen and, subsequent to
the 1984 will, Helen and Paul have divorced, Helen would not be
able to take the remainder of the property under the 1984 will (s
18(a)). The remainder of the property would therefore devolve on
intestacy. Helen would not be entitled as she is no longer a spouse.
Susan could not take on the intestacy as she is not married to Paul;
therefore, Dan would take the remainder of the property as he is
an issue of Paul. Dan would be able to take absolutely as he is
now of age.
The effect of the will of April 1989 would partially revoke the
will of 1984. The difference here is to consider the effect of the
marriage of Paul and Susan subsequent to the will of April 1989.
Section 18(1) of the Wills Act 1837 as amended by s 18 of the
Administration of Justice Act 1982 provides that a will shall be
revoked by the testator’s marriage.2 If the will of 1989 is revoked
by the subsequent marriage then, depending upon the value of
Paul’s estate, this would be divided on intestacy between Susan
as the surviving spouse and, if there are sufficient funds after
dealing with the personal chattels and the statutory legacy of
£125,000, both of which go to Susan, then Dan would be entitled
to a share of the estate.
Section 18 of the Wills Act goes on to provide that where it
appears from the will that the testator was expecting to be
married to a particular person, then the will is not revoked by
a subsequent marriage to that person. Susan would be arguing
here for the will not to be revoked for she could then claim
Blackacre under the will in addition to claiming her share of the
remainder of the estate on intestacy as the surviving spouse. Is
the will made in expectation of marriage? The Administration of
Justice Act 1982 amended s 18 by repealing the original
provision, s 177 of the Law of Property Act 1925, which referred
to any will made in contemplation of marriage. The law was
reviewed by Megarry VC in Re Coleman (1976), where he
confirmed that a will is not revoked where the whole of the
property is left to a named fiancée and the testator subsequently
marries that person, as in Re Langston (1953). 3 However,
Megarry VC disapproved of the decision in Pilot v Gainfort

43
Q & A ON SUCCESSION

(1931), where the beneficiary was described by the testator as

‘his wife’ when at the time of the will, he was not married to the
person, but did marry her some time after the will. The court
held that the will was made in contemplation of marriage;
however, Megarry said that contemplation denotes a future
event, whereas describing someone as ‘my wife’ refers to a past
event, namely the previous marriage. The issue here would be
whether the court would accept that a reference to ‘my wife’
when the marriage takes place shortly afterwards would be
sufficient to amount to an expectation that is to say an
impending marriage. In Re Coleman, Megarry said that the
whole will must be made in contemplation of marriage. By s
18(4) of the amended s 18, one can now have individual gifts in
a will expressed to be in expectation of marriage. Under this
section, if particular gifts are saved as being in expectation of
marriage, the whole will is saved. Therefore, if the court accepts
the reference to ‘my wife’, then the gift of Blackacre to Susan
will not be revoked by the subsequent marriage.
Whether or not the 1989 will contains an express revocation
clause, the fact that it is wholly inconsistent with the 1984 will
will mean that the 1989 will revokes the 1984 will in total. See,
for example, Pepper v Pepper (1870). In any event, the subsequent
divorce will have caused the gift to Helen to lapse; therefore, if
Paul had died prior to making the 1989 will, the whole of the
property will have passed on intestacy to Dan. As it is, all the
property would pass to Susan under the 1989 will, provided
Paul has not revoked the will of 1989 following the conversation
in 1992.
Section 20 of the Wills Act 1837 provides, inter alia, that a will
may be revoked by ‘burning, tearing, or otherwise destroying the
same with the intention to revoke’. The act of destruction and the
intention, must be concurrent. We are told that Paul tore up the
will of 1989. As a physical act, this would amount to a total
revocation: see, for example, in the goods of Re Morion (1887), in
the estate of Nunn (1936), but compare the lack of destruction in
Cheese v Lovejoy (1877).4 However, apart from the act of destruction,
one must prove that the testator formed a clear intention to revoke,
the animus revocandi. So, for example, Brunt (1873), where the will
was not revoked where the testator tore up the will in the course
of suffering from delirium; or Re Booth (1926), where the will was
accidentally destroyed by fire.

44
 REVOCATION AND ALTERATIONS

It would appear at first glance that Paul does intend to revoke the
will. However, in order to be valid, the intention must be clear and
without any qualification. Paul is mistaken in that since he has not
married Susan, she would not be entitled to share on Paul’s resulting
intestacy.5 Susan could still take if she could successfully argue that
the 1989 will is not revoked on the basis of the doctrine of dependent
relative revocation. Susan could argue that Paul’s intention to revoke
is flawed, in that it has been made on a mistaken belief as in the
estate of Southerden (1925). In Southerden, Pollock MR said:

…the two of you may be that a revocation grounded on the assumption

of fact which is false takes effect unless, as a matter of construction, the
truth of the fact is the condition of the revocation or, in other words,
unless the revocation is contingent upon the fact being true.

In Re Jones (1976), Buckley LJ in the Court of Appeal said that

where a testator destroys his will, one would ask a series of
questions. First, did the testator destroy the will with the intention
of revoking it? If he did not then there can be no revocation. If
there was an intention to revoke, is the intention absolute or
qualified? If it is qualified, what is the nature of the qualification?
If the qualification is in the form of a condition or contingency,
has the condition or contingency been fulfilled? If not, then the
revocation is ineffective.6 In Re Finnemore (Dec’d) (1992), the court
held that an express revocation clause was conditional on the basis
that such a clause could give a distributive meaning, thereby
enabling the court to interpret the clause as applying absolutely
to some provisions, but only conditionally to others. In interpreting
it in this way, the court was able to apply the doctrine of conditional
revocation to save a gift in an earlier will, which had been struck
down in a subsequent will owing to the effect of s 15 of the Wills
Act 1837, in that the beneficiary had been a witness to the
subsequent will. If, therefore, Susan could establish that Paul’s
intention in tearing up the will is qualified, and the nature of the
qualification is such that the tearing up is conditional upon Paul’s
assumption being correct then the will would not be revoked and
Susan could take all the property. Susan would, of course, have to
establish proof of the contents of the will. The court would accept
an authenticated completed draft copy of the will as secondary
evidence as to contents (see, for example, Re Webb (1964)). The
court would also consider statements by parties having a

45
Q & A ON SUCCESSION

knowledge of the contents as to the contents of the will and even

statements by Susan as principal beneficiary (see Sugden v Lord St
Leonards (1876)).7

Notes

1 Under the Law Reform (Succession) Act 1995, Helen will be

treated as if she had died on the date on which the marriage
was dissolved.
2 Marriage here would include a voidable marriage as in Re
Roberts (1978), but not a void marriage as in de Renville v de
Renville (1948).
3 In Re Coleman, Megarry VC held that the will was revoked by
the subsequent marriage on the basis that the whole will was
not made in contemplation of marriage, simply a gift in favour
of the fiancée. This point is now dealt with by s 18(4) of the
Wills Act 1837.
4 The action in Cheese v Lovejoy arose because the provision prior
to the Wills Act 1837, in the Statute of Frauds 1677, referred to
burning, tearing and cancelling the same. Did cancellation
come within the wording in s 20 ‘burning, tearing or otherwise
destroying the same’?—‘No’ said the court in Cheese v Lovejoy,
the words ‘otherwise destroying the same should be construed
in relation to burning and tearing’.
5 Even if Paul had married Susan, Susan would not necessarily
have taken the whole of the estate, for this would depend upon
the value and the possibility that Dan could share on the
intestacy.
6 In Re Jones, the court concluded that the testatrix had revoked
her first will (by scratching out her signature) and this act was
not qualified as being dependent upon the second will being
valid; therefore, where the testatrix died before she could
execute the second will, the court ruled that the estate passed
on the total intestacy.
7 The court concluded that Lord St Leonards, a former Lord
Chancellor, held his will in such regard that this negated the
presumption that he had revoked the will animus revocandi when
the will could not be found at his death. The court then admitted
evidence from one of his daughters who had acted as his
secretary and was familiar with the phraseology of the will.

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 REVOCATION AND ALTERATIONS

Question 11

‘All the destroying in the world without intention will not revoke
a will, nor all the intention in the world without destroying: there
must be the two’, per James LJ in Cheese v Lovejoy (1877).
Discuss this statement.

Answer plan

The question is asking for a detailed analysis of s 20 of the Wills

Act 1837 as to the meaning of revocation by destruction and the
requirement that the act of destruction must be concurrent with
the intention to revoke. One has to consider what is meant by
destruction and consider examples of ways in which the intention
is not clearly formed.

Answer

The key characteristic of the law of wills is that a will is revocable

at any time prior to the death of the testator. A will cannot be
made irrevocable (Vynior’s Case (1609)). A will can only be revoked
in one of the ways laid down by the Wills Act 1837. Apart from
informal revocation where the testator may be in privileged status,
the statutory power to revoke is contained in ss 20 and 18 of the
Wills Act 1837. Section 18 is concerned with the revocation by
marriage and is inapplicable here. The quote is concerned with
the interpretation of that part of s 20 which refers to revocation by
‘burning, tearing or otherwise destroying the same’ by the testator
or some other person in the presence and on the direction of the
testator with the intention to revoke.
In order to effect a valid revocation, s 20 requires an act of
destruction coupled with a contemporaneous intention to revoke.
How are the words ‘or otherwise destroying the same’ interpreted?
Prior to the Wills Act 1837, revocation by destruction was governed
by the Statute of Frauds 1677. This Act referred to ‘burning, tearing
and cancelling the same’. In Cheese v Lovejoy, the testator drew his
pen through some lines in the will and wrote on the back ‘all these
are revoked’ and threw the will into a pile of waste paper. The

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Q & A ON SUCCESSION

will was subsequently retrieved by a housemaid and the court

held that it had not been revoked. The court construed ‘or
otherwise destroying the same’ in relation to the prior words
‘burning and tearing’.
What does amount to destruction? Where the court construes
the action as mere cancellation, this will not affect the revocation,
as shown in Cheese v Lovejoy and in Stephens v Taprell (1840), where
the testator crossed out certain dispositions and put a line through
his name. The court asked the question is the act of destruction
such as to impair the entirety of the will? So in a case prior to the
Wills Act, Hobbs v Knight (1838), the will had been so heavily scored
over that the signatures of the testator and the witnesses could
not be read. The court considered that this showed an intention to
revoke the entire will. In Re Adams (1990), the testator had scribbled
over his signature with a ball-point pen. The court considered the
extent of the obliteration and by analogy with s 21 of the Wills
Act, which refers to the admission of unattested alterations, asked
the question could the signature be read with the normal aids to
eyesight? The answer was no, and the court concluded that the
intention was to revoke the entire will. If, therefore, the signature
is still legible the will may still be regarded as admissible, as in Re
Godfrey (1893).1
The act of destruction must take place with a concurrent clearly
formed intention to revoke. The will need not be destroyed by the
testator, the act could be carried out by someone else provided
this takes place in the presence of the testator and on his direction.
In Gill v Gill (1909), the will was torn up by the wife of the testator
in the course of a row with her husband. Although one had
committed the act of destruction, there was no concurrent
intention.2 The testator in Gill v Gill did not take any steps to replace
the will and it is likely that he subsequently agreed with his wife’s
action. However, the intention to revoke must coincide with the
act of destruction, see, for example, Mills v Millward (1889), where
the court rejected that one could have subsequent ratification of
an act of destruction.
The intention to revoke must be clearly formed. Therefore,
where the testator lacks the mental capacity to form the intention,
there can be no revocation. For example, in Brunt v Brunt (1873),
the will was not revoked where the testator tore up the will in the
course of suffering delirium tremens or in the goods of Brassington
(1902), where the testator destroyed the will whilst drunk. The

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 REVOCATION AND ALTERATIONS

test for mental capacity is the same as that required for the making
of a valid will (Re Sabatini (1969)).
There can be no valid revocation where the will is destroyed by
accident (see in the goods of Re Taylor (1890)) or where the will
had been destroyed in the belief that it had already been revoked,
as in Scott v Scott (1859), where there was a mistaken belief that a
later will had already revoked it. Qualified revocation was
considered by the Court of Appeal in Re Jones (1976). The court
said one should ask a series of questions. When the testator
destroyed his will, was the intention to revoke qualified or
unqualified? If it was unqualified, the will is revoked. If the
intention is qualified, one then considers the nature of the
qualification. If the qualification is in the form of a condition or
contingency, has that condition or contingency been fulfilled? If it
has not, then the revocation is ineffective. The questions posed
are asked where the court considers the doctrine of conditional or
dependent relative revocation.
Where the original will was known to be in the possession of
the testator there are two rebuttable evidential presumptions to
consider. First, where the original will cannot be found at death,
there is a presumption that the will has been revoked by the testator
animus revocandi (Allan v Morrison (1900)). This presumption will
vary according to the security surrounding the keeping of the
will—the safer the security, the stronger is the presumption; see
dicta in Sugden v Lord St Leonards (1876).3 This presumption is
rebuttable by evidence, for example, that the testator intended to
adhere to the will (Sugden v Lord St Leonards). The court will also
presume, where the will was known to be in the possession of the
testator, and is found in a torn or mutilated condition at the death
of the testator, that the testator has carried out the act of destruction
animus revocandi (Lambell v Lambell (1831)). This again can be
rebutted by evidence to the contrary. The burden of proof is on
the balance of probabilities and would rest with the person seeking
to propound the will as validly admissible.

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Q & A ON SUCCESSION

Notes

1 There was commentary in Re Adams that the decision in Re

Godfrey rested on the fact that all the interested parties accepted
that the will was valid rather than on a formal ruling by the
judge to that effect. An interesting case is that of the estate of
Nunn (1936), where the testatrix cut certain beneficiaries out
of the will literally and then pasted the will together again. If
she had stopped there, the will would have been admissible;
however, she went on at a later date to cut off the part of the
will containing her signature and the signature of the witnesses
and the court concluded that the entire will had then been
revoked.
2 On the facts in Re Jones, the court concluded that the testatrix
had mutilated the will herself with the intention of revoking
the will prior to consulting her solicitor about making a new
will. She died before instructions could be given for a new
will and here, estate was distributed on intestacy.
3 The court found that the will was not kept under close security
in the Sugden case. The testator had been taken ill and it was
known that the will was kept in a deed box close to him. The
testator made a partial recovery and then there was a relapse
and in the course of his being moved following these events,
the will disappeared.

Question 12

Jane has recently died. It is found that she left a will dated in 1995
and a codicil to that will made in 1998. Both were validly executed.
The will left her entire estate to Timothy. She married Timothy
in 1996.
By her codicil of 1998, which was type-written, she made a
number of gifts:

• a pecuniary legacy of £1,000 to her sister Pamela. A line has

been drawn through the figures of £1,000 and £500 has been
written above it in ink;
• a pecuniary legacy to her brother Stuart. The amount of the
gift has been crossed out, again in ink, and it is not possible to
decipher the original figures;

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 REVOCATION AND ALTERATIONS

• a further pecuniary legacy to her other brother David. Here

the value has again been crossed out so that the original cannot
be deciphered, but a new amount of £1,000 has been written
in above it;
• a final pecuniary legacy to her niece, Stephanie. The amount
of this gift, £100, is written in ink in a space left for this purpose
in the codicil.

The codicil then adds ‘As Timothy and I are now married, I confirm
my 1995 will in all other respects’.
Discuss the effect of the will and codicil.

Answer plan

This question calls for a discussion of the rules of revocation by

marriage, the possibility of revival of a revoked will and the rules
relating to unattested alterations to a will. It is suggested that the
best approach in questions of this nature is to take matters in
chronological order, dealing first with the effect of marriage, then
the points about revival and finally the validity of each of the
legacies in turn.

Answer

Although Jane’s will was valid when executed in 1995, her

marriage to Timothy will have served to revoke it—s 18 of the
Wills Act 1837. There is no indication that the will was made in
expectation of marriage. The codicil of 1998 may, however, have
revived the previously revoked will.
Revival is governed by s 22 of the Wills Act 1837 and by that
section a revoked will may be revived either by re-execution of
the will or by a codicil showing an intention to revive. The mere
fact that there is a codicil to a will is not in itself enough. What is
required as a clearly expresses intention to revive—see In the Goods
of Steele (1868). In this case, the court held that a will which had
been revoked by marriage was revived when the testator wrote
on the envelope containing the will ‘the herein named Ethel Phoebe
Horsley is now my lawful wedded wife’ and the writing was duly

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Q & A ON SUCCESSION

signed and attested. In our problem, the matter is even clearer.

Jane has expressly confirmed her will following her marriage and
thus the 1995 will is revived by the 1998 codicil.
Each of the provisions of the codicil has been altered. Alterations
are governed by s 21 of the Wills Act 1837, which states that no
alteration made after the execution of a will shall be valid unless
the words before such alteration shall not be apparent or unless
the alteration has been executed in accordance with the formalities
in s 9. It is clear that if the alterations are made before execution,
then they are completely effective but, if they are not attested,
there is a general presumption that they were made after Cooper v
Bockett (1846).
In the case of the gift to Pamela, unless there is some evidence
that the alteration was made before execution it will be presumed
made after and thus presumed void.1 Therefore, the inserted figure
of £500 will not be effective. The question then arises as to whether
the original wording is apparent. Apparent has been defined to
mean visible by natural means and includes such means as holding
the will up to the light (Ffinch v Combe (1894)), but does not include
the use of extrinsic evidence such as the draftsman’s notes or infra-
red photography. Here the original amount of £1,000 can be read
so a grant will be made of that figure.2
In relation to the gift to Stuart, the original wording is not
apparent. There has been a total obliteration. Under the terms of s
21, this acts as a revocation of the words obliterated. Thus, if that
obliteration was done with sufficient intention to revoke (rather
than, say, by accident or mistake), a grant will be made with a
blank space. Stuart will receive nothing.
In the gift to David, again there has been an obliteration, but
this time Jane has inserted a new amount. The courts may, in these
circumstances, have recourse to the doctrine of conditional
revocation. The argument would be that Jane only revoked the
initial amount on condition that the newly inserted figure was
valid. As the newly inserted figure is not effective (as unattested),
the condition attached to the revocation of the initial amount has
not been met. Therefore, the initial figures had not been revoked
and a grant should be made of the initial amount. In Re Itter (1950),
the testatrix pasted strips of paper over the figures in legacies and
wrote new amounts on top. The court applied the doctrine of
conditional revocation and held that, in these circumstances,
extrinsic evidence would be available to discover the original,

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 REVOCATION AND ALTERATIONS

unrevoked amounts. In our problem, evidence should be sought

to discover what Jane had originally written. If such evidence is
not forthcoming, David will receive nothing.
Finally, the gift to Stephanie has been completed by filling in a
blank space. In Birch v Birch (1848), it was held that the general
presumption that unattested alterations are made after execution
would not apply if there was evidence in the will itself to the
contrary. The evidence in that case was of blanks filled in by the
testator in the same ink as that in which the will was written
(though blanks filled completed in a different coloured ink were
still subject to the presumption). In our case, whilst the codicil
was type-written and the blanks completed in ink, it could be found
that the presumption was rebutted as otherwise there would be
no ‘intelligible meaning’ to the gift. On the other hand, it could
also be argued that Jane’s intention was to consider and insert the
amount at a later date.3

Notes

1 If a will contains unattested alterations, the Probate Registrar

will normally call for an affidavit of plight and condition from
the attesting witnesses to establish whether there is any
evidence that alterations were made before execution, thus
rebutting the presumption.
2 The Probate Registrar will normally require an engrossment
of the will in the form in which a grant is to be made.
3 In practice, it is normal to ask the testator and witnesses to
initial alterations whenever they are made in order that the
presumption will not apply.

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 CHAPTER 4

PRIVILEGED WILLS AND

MUTUAL WILLS

Introduction

In this chapter, we will look at two different and entirely separate

forms of will.
Privileged wills are governed by s 11 of the Wills Act 1837 as
amended by the Wills (Soldiers and Sailors) Act 1918. If a testator
falls within the above provisions, no formal requirements are
necessary for the valid execution of a will even to the extent that
an oral will can be completely valid. It must be stressed, however,
that the requirements of capacity and intention still exist, the latter
giving rise to some borderline decisions in the case of oral wills—
see In the Estate of Knibbs (1962), Re Stable (1919) and Re Jones (1981).
In order to come within privileged status, a testator must either
be a soldier, sailor or member of the Royal Air Force ‘in actual
military service’ or a mariner/seaman ‘at sea’. The definition of
actual military service has given some difficulties to the courts
and, following the leading case of Re Wingham (1948), a broad
interpretation has been adopted—see Re Coleman (1958) and Re
Jones (1981).
Sailors/mariners at sea include both civil and military
personnel, such as a typist in In Bonis Sarah Hale (1915) and the
expression ‘at sea’ has been widely construed to include persons
on shore in the middle of a voyage—In Bonis Lay (1940)—and
persons under orders to sail—In Bonis Sarah Hale (1915).
It is to be noted that even after the privileged status ceases, a
privileged will remains effective until revoked in one of the
normal ways.
Mutual wills arise where (normally) two persons make wills in
identical terms leaving property to each other (either for life or
absolutely) with a remainder or gift over to a third party. The wills
are subject to an agreement that they are irrevocable without the
consent of both parties. As a will must be revocable, the nature of
the agreement raises problems of principle. The problems are

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Q & A ON SUCCESSION

resolved by equity imposing a trust on the survivor where the

first person dies leaving the will unrevoked.
Difficulties arise over the nature of the agreement as in Re Cleaver
(1981), the date the trust comes into effect—Re Hagger (1930) and
the extent of the trust property—Re Cleaver (1981).

Question 13

Peter was serving abroad as part of the United Nation Security

Force in a peace keeping role following a terrorist uprising. Whilst
in a café one evening with his friend and colleague, John, the
conversation turned to the subject of wills. Peter said ‘I haven’t
made a will yet, but I think that all my property should go to my
brother, Tom’.
Peter returned to England after his duties were over and left
the armed forces the following year. He died recently and was
survived by his two brothers, Tom and Jerry. He had no other
close relatives. No formal will has been found.
Discuss the distribution of his estate.

Answer plan

This question is inviting consideration of whether Peter has made

a valid privileged will. The major issues are whether he is in actual
military service and, if so, whether his oral statement to John was
made with sufficient intention to constitute a valid will.

Answer

As none of the formalities required by s 9 of the Wills Act 1837

have been complied with when Peter made his oral statement to
John, the only way in which the statement could amount to a valid
will is if at the time Peter was a privileged testator.
In order to be privileged, it must be shown that Peter fell within
the terms of s 11 of the Wills Act 1837 as a soldier in actual military

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service. On the assumption that he is clearly a soldier, the question

then arises as to what constitutes actual military service.
In Re Wingham (1948), the testator was a trainee pilot in the
RAF and, in 1942, was sent to training camp in Canada. Whilst
there, he wrote out a will which was not attested. He died during
a training accident and the principal question for the court related
to whether, as a trainee pilot, he was in actual military service.
The Court of Appeal found that he was, per Bucknill LJ, ‘directly
concerned with operations in a war which is or has been in progress
or is imminent’. Cohen LJ thought he was ‘liable at any time to be
ordered to proceed to some area to take part in active warfare’.
Denning LJ, however, formulated a broader test by defining actual
military service as ‘in connection with military operations which
are or have been taking place or are believed to be imminent’. He
added that in cases of doubt, the serving soldier should be given
the benefit of the privilege.
This wider construction which uses the term ‘military operation’
as opposed to war or warfare has been taken up in Re Coleman
(1958), which concerned a soldier on garrison duties in occupied
Germany following the end of the Second World War. He was
found to be acting ‘in connection with military operations which
have taken place’. More recently, in Re Jones (1981), the deceased
was killed by a gunman whilst on patrol in Northern Ireland as
part of the security forces. The court there suggested that the true
test was to look at the nature of the activities rather than the nature
of those against whom the activities were directed.
In our case, the role of the United Nations Security Force
would seem to fall within the scope of a military operation and
on Lord Denning’s broader view, it seems that Peter has
privileged status.
If this is the case, the question arises whether the statement to
John is sufficient to be a will. It is clear that for it to be effective,
the deceased must intend that, as a result of his words, his property
should devolve in the manner which he states. In other words, he
must comply with the normal test of intention in Guardhouse v
Blackburn (1866) and Corbett v Newey (1998).
In In the Estate of Knibbs (1962), there was a casual conversation
between two barmen on a liner during the course of which one
said to the other ‘if anything happens to me Iris will get everything
I’ve got’. The court held that the deceased lacked animus testandi,
it was a mere ‘exchange of gossip’ and, at best, a statement of a

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Q & A ON SUCCESSION

pre-existing position rather than an instruction to be acted upon

on his death. In Re Stable (1919), a soldier about to go to the Front
in the First World War said to his fiancée ‘If I stop a bullet
everything of mine will be yours’. The court here held there to be
sufficient intention.
The distinction between the two cases is not entirely clear. It
could be argued that in Stable, the words were spoken directly to
the beneficiary and were therefore more likely to be intended as
instructions to be carried out, whereas in Knibbs, they were spoken
about a beneficiary. However, in Re Jones (1981), the words ‘make
sure Anne gets all my stuff’ were spoken to the deceased’s
commanding officer though, in this case, the terms used seem to
contain sufficient intention.
In our situation, the meaning behind the words used is not clear.
The use of the term ‘should’ may indicate a view (incorrect) of the
operation of the intestacy rules, a moral wish or a legally
enforceable disposition. Only if the latter is the case will the will
be effective.
It is to be noted that although Peter’s privileged status had
ceased some time before his death, the privileged will remains
effective. If the court finds that there is no valid will, Peter’s estate
will be distributed to his two brothers, Tom and Jerry, equally
under the intestacy rules.

Note

Despite the relative infrequency of privileged wills, the Law

Reform Committee (Report 22, 1980) recommended their retention.
They felt that circumstances might arise where the privilege was
needed in the future and, even in peacetime, for certain military
operations.

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 PRIVILEGED WILLS AND MUTUAL WILLS

Question 14

In 1990, George and his wife, Mildred, decided that they should
make wills. It was agreed that they would initially leave all their
property to each other but, when they had both died, it was to
pass to their grandchildren.
Mildred died in 1996 following a lengthy period of residence in
a local hospice. At the date of her death, there were three
grandchildren alive; Belinda and Charles (children of their son,
Robin) and Desmond (child of their daughter, Pat).
In 1997, Belinda died.
In 1998, Pat had another child, Oswald.
Recently, George won £300,000 on the football pools.
George now consults you about changing his will as he now
feels that he has enough capital to make a significant donation,
either by will or inter vivos, to the hospice in which Mildred had
been a long term resident.
Advise him.
How, if at all, would your answer differ if on Mildred’s death,
it was found that she had altered her will slightly to include a gift
of £500 to George and Mildred’s neighbour, Susan?

Answer plan

This question is concerned with the rules about mutual wills. It

covers all three areas of potential difficulty and points should be
made about what evidence of an initial agreement is required. As
one of the beneficiaries has died before George, the date of the
coming into force of the trust should be discussed, as should the
possible addition of new beneficiaries. Finally, given the extra
property acquired by George and his desire to change his will, the
freedom of the survivor to deal with any monies arising either
from the first death or subsequently should be noted.
The alternative in the question seeks to investigate to what
extent a survivor is bound if there are changes, albeit nominal, in
the first will.

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Q & A ON SUCCESSION

Answer

Unless the wills made by George and Mildred are in the form of
mutual wills, it is clear that George is completely free to deal with
any property of his own (inherited from Mildred or otherwise) as
he chooses. He could thus make his intended gift to the hospice,
add the new grandchild and any further grandchildren to the list
of beneficiaries and delete those of his grandchildren who had
predeceased. He could, if he so wished, make an entirely new and
different will. If, on the other hand, it is found that the wills are
mutual, he may find himself bound as to the destination of his
property under the terms of a trust.
In order for it to be established that there are mutual wills, it
must first be shown that the parties made them subject to an
agreement that the wills remain irrevocable during their joint
lives without the consent of both parties. Merely agreeing to
make wills in the same form is not enough; proof of the
agreement that they remain irrevocable is essential. The best
evidence of this agreement comes from the wills themselves by
an express clause to that effect, as in Re Green (1951). Failing an
express clause, other evidence, such as the conduct of the
parties, may be used. In Re Oldham (1925), there was evidence
form the letters of instruction written to their solicitor that the
parties intended to make identical wills, but there was no proof
of an agreement not to revoke, so the court found that the wills
were not mutual. In Re Cleaver (1981), extrinsic evidence was
available to establish an agreement not to revoke and the onus
of proving it was said to rest on the party seeking to establish
that the wills were mutual. In our case, it is not clear from the
facts whether or not an agreement exists. The wording of the
wills themselves would need to be examined and, failing an
express clause, other evidence may be adduced.
If the wills are mutual, equity will intervene to impose a trust
on the death of Mildred. Although George will be free to change
his will, this will have little effect, as the property will be caught
by the terms of this initial trust. In Re Hagger (1930), a husband
and wife made mutual wills in favour of each other for life with
remainder to nine beneficiaries, including Eleanor Palmer. The wife
died in 1904, Eleanor Palmer died in 1923 and the husband in 1928.
The court held that although Eleanor did not survive the husband,

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 PRIVILEGED WILLS AND MUTUAL WILLS

her share had become vested under the terms of the trust in 1923
when the wife died. Thus, Eleanor’s estate became entitled on the
death of the husband. Further, in Re Dale (1993), it was held that
the trust becomes effective on the death of the first party whether
or not the second takes or refuses to take any benefit under the
will. Thus, in our case, Belinda’s share will have vested on the
death of Mildred and her estate will take an appropriate benefit
on George’s death.
If the shares in the trust become vested on the death of the first
party, there might be a problem with increasing the number of
beneficiaries. Certainly, if the beneficiaries are named, there would
be a departure from the terms of the trust to add a new one. In our
case, however, it seems that there is a class gift to the grandchildren
and with gifts of this kind, the persons who are to make up the
class may vary over a long period (subject to class closing and
perpetuity rules). It would seem, therefore, that there will be no
difficulty in the inclusion of Oswald as a beneficiary within this
class gift.
The final problem is to identify the property which is subject
to the trust, in particular, in our case, the £300,000 winnings.
Assuming the gifts made in George and Mildred’s wills are to
be absolute gifts, a strict interpretation of the trust would mean
that George is bound to apply not only the property he acquired
from Mildred, but also any of his own after-acquired property
for the benefit of the grandchildren. In other words, he would
simply have the role of a trustee and not have any rights to
enjoyment of the property himself. This harsh view would
hardly accord with the intentions of the parties and, in Re
Cleaver (1981), Nourse J outlined the operation of the trust. In
doing so, he relied heavily on the Australian case Birmingham v
Renfrew (1937). He said the purpose of the trust was to allow the
survivor during his lifetime to deal with the property as
absolute owner but, on his death, he is to dispose of it in the
manner agreed upon. He then went on to say that certain gifts
and settlements, if calculated to defeat the intention of the
agreement, could not be made and the survivor’s rights of
disposition inter vivos were therefore not unqualified. It seems
then, in our case, that George’s intention to give a significant gift
to the hospice might not be possible. It would probably be too
significant to make during his lifetime and he cannot alter the
beneficiaries under the original agreement.

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Q & A ON SUCCESSION

If Mildred’s alteration of the will to include a gift to Susan was

done without George’s consent, then according to Stone v Hoskins
(1905), he will be released from his obligation not to revoke. In Re
Hobley (1997), it was emphasised that an apparently minor
alteration by one party might have sentimental or other importance
to another. The doctrine of mutual wills required any alteration to
have been agreed by both parties. In these circumstances, George
will be free to dispose of the entire estate as he chooses, either by
will or inter vivos.

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 CHAPTER 5

INTESTACY

Introduction

A total intestacy occurs where the deceased has left no valid will
at all. If the deceased did leave a valid will which does not deal
with his entire estate, there will be a partial intestacy. In these
circumstances, the provisions of the will take precedence over the
intestacy rules. In assessing the assets which fall to be distributed
in accordance with the intestacy rules, it is also important to
remember that property (be it realty or personalty) which the
deceased held as a joint tenant will devolve on the surviving joint
tenant by the rules of survivorship. Further, some life insurance
policies are written in trust for a specified beneficiary. Unlike an
ordinary life policy which devolves on the personal
representatives, these policies pass directly to the beneficiary for
whom they have been written in trust and therefore are not
distributed in accordance with the intestacy rules or the terms of
the will. It should also be noted that as the proceeds of the policy
are deemed always to belong to the beneficiary, they do not form
part of the deceased’s estate for Inheritance Tax purposes.
If the deceased is survived by a spouse, the surviving spouse
will receive a proportion of the estate which varies in accordance
with the other relatives left by the deceased. Careful attention
should be paid to the differing amounts and to the options open
to a spouse to appropriate the matrimonial home and, if a life
interest is created, to capitalise that interest. One of the entitlements
of the spouse is to the personal chattels of the deceased as defined
in s 55(1)(x) of the Administration of Estates Act 1925. The wording
of this section has been much litigated and note should be taken
of the broad and flexible approach taken by the courts (as, for
example, in Re Crispin’s WT (1974)). The Law Reform (Succession)
Act 1995 imposed an automatic survivorship period of 28 days in
respect of spouses (but no other class of relative). The Act also
abolished any rules by which the surviving spouse (or issue) had
to bring into account other gifts made by the deceased.

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Q & A ON SUCCESSION

If there is no surviving spouse, the estate on intestacy will be

distributed in accordance with the list set out in s 46 of the
Administration of Estates Act 1925. This list involves a binding
order of priority and the presence of relatives in a higher class
means that any persons in a lower class have no entitlement. This
list of entitlement also gives the order of persons who may apply
for a Grant of Administration under r 22 of the Non-Contentious
Probate Rules 1987 (with the addition of ‘creditor’ at the end of
the list).
The entitlements for these relatives are (with the exception of
‘parents’ and ‘grandparents’) on the statutory trusts. These trusts
state that the members of the class share equally on a per stirpes
basis contingent on attaining the age of 18 or earlier marriage.

Question 15

Alec died last month intestate. His estate consists of:

(a) a house with a total market value at death of £120,000. The

house is jointly owned with his wife, Betty;
(b) a car, value £10,000, used partly in his business as an
accountant and also as his private car;
(c) furniture, clothes and personal effects, value £8,000;
(d) investments, cash at the bank and proceeds of an insurance
policy payable to his administrators on his death, total, after
all liabilities have been paid, £245,000.

Alec is survived by Betty, his mother, Mabel (aged 84 and living in

a nursing home), his son Paul aged 38 and Susan and Joy, aged 22
and 16 respectively, the daughters of Alec’s son Michael who died
two years ago.
Advise upon the distribution of the estate.
Who is entitled to a grant to the estate?
What difference, if any, would there be to the distribution if
Betty obtained a decree of judicial separation three months before
Alec’s death?

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Answer plan

This is a typical intestacy problem involving consideration of the

rules of distribution on a total intestacy with the added twist of
identifying possible administrators to the estate.
The approach should be:

• identify those who survive the intestate and who are entitled
to share in his estate;
• consider the entitlement of the respective beneficiaries;
• The persons who are potentially entitled to a grant of
administration to the estate;
• finally, one would deal with the rider question, the effect of a
decree of judicial separation.

Answer

Alec has died totally intestate. Betty would receive the interest in
the house by right of survivorship.1 The remainder of Alec’s
property will be held by his personal representatives on trust (s
33 of the Administration of Estates Act 1925, as amended by the
Trusts of Land and Appointment of Trustees Act 1996). The
personal representatives must pay the funeral, testamentary and
administration expenses and any debts, and thereafter distribute
the balance to those entitled on the intestacy.2
The entitlement to share in the estate of the intestate depends
upon the survivorship of individuals and the order of priority
contained in s 46 of the Administration of Estates Act 1925. A
surviving spouse has priority over all other categories. The extent
of the share of the surviving spouse will depend upon the
survivorship of others. In this case, the property will be shared
between the surviving spouse, Betty, and the surviving issue.3 The
survivorship of Betty and issue means that no one else can be
entitled on the intestacy; therefore, Alec’s mother will not be able
to share.
Betty is entitled to the personal chattels absolutely, £125,000
free of tax and costs plus interest from the date of death until

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payment (this sum is called the ‘statutory legacy’). In addition,

Betty is entitled to a life interest in half the residue of the estate.
The personal chattels are defined by s 55(l)(x) of the
Administration of Estates Act 1925. The furniture, clothes and
personal effects belonging to Alec at death and value £8,000
would come within the definition. Section 55 also includes
motor vehicles except those used for business purposes.
Whether, therefore, Betty could take the car as a personal chattel
would depend upon the degree of business use compared with
private use. As suggested in Re MacCulloch (1981), the test is one
of ‘primary purpose’. Next, Betty is entitled to the statutory
legacy of £125,000. If it is the case that the business use of the
car is merely incidental to the private use, then the car would
pass to Betty by virtue of s 55. Section 55 specifically excludes
from its definition investments and cash; therefore, the balance
of the estate would be represented by the £245,000. If the
statutory legacy is deducted, this leaves a balance of £120,000
which would be divided as to one-half to Betty for life and the
other half held on the statutory trusts for the issue. Betty would
therefore be entitled to the income yield on a fund of £60,000 for
the remainder of her life. On her death, the fund would be
divided among the issue. By virtue of s 47(1)(a) of the
Administration of Estates Act 1925, the surviving spouse has the
right to redeem the life interest, should the spouse so elect, by
serving notice to the personal representatives within 12 months
of the issue of the Grant of Representation. Betty would receive
a lump sum and the balance of the fund which originally
supported the life interest would pass to increase the
entitlement of the issue.4
The issue are Alec’s son Paul, and the granddaughters, Susan
and Joy. Distribution is on a per stirpes basis. Susan and Joy take
the share their deceased father Michael would have taken had
he survived Alec. The other half of the residue, £60,000, would
therefore be divided two ways as to £30,000 to Paul and £30,000
shared equally between Susan and Joy. The issue take upon the
statutory trusts, that is to say, their interests vest when they
attain 18 or marry under that age. In this case, Paul and Susan
will obtain vested interests. Paul with therefore take £30,000.
The remaining £15,000 will be held upon the statutory trusts for
Joy and will vest when Joy attains 18 or marries under that age.5
The order of entitlement to a grant of administration to the

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estate follows the order of priority of beneficial interest to the

estate with the addition of creditors, see r 22 of the Non-
Contentious Probate Rules 1987. The order would therefore be
Betty, Paul, Susan and Mabel. Where the intestacy rules create
a life interest or there is property held on a contingent interest,
for example, in this case, the share held on behalf of Joy, the
court usually requires at least two administrators to be
appointed—s 114 of the Supreme Court Act 1981. There would
have to be two chosen from Betty as priority, then Paul and
Susan. It is not likely that Mabel would be considered in view
of her age and being confined to a nursing home.
If Betty had obtained a decree of judicial separation then,
provided the judicial separation is still in force at the death of
Alec and the separation continued until the death, Betty would
be treated as predeceasing Alec for the purposes of intestate
distribution (s 18(2) of the Matrimonial Causes Act 1973). The
effect, therefore, would be to pass the entire beneficial interest
of the estate which passes on the intestacy (that is, excluding the
house which would still pass to Betty by virtue of survivorship)
to the issue. Therefore, the value of the car and the furniture,
clothes and personal effects would be added to the £245,000 and
divided into two equal shares, that is, the ‘Paul fund’, and the
fund to be shared by Susan and Joy. There would still have to
be two administrators because of the contingent interest passing
to Joy. Betty would drop out and, in view of the age of Mabel
and her being in a nursing home, administration could be
granted to Paul and Susan. If either Paul or Susan were
reluctant, Joy, as she is 16, could nominate someone to act as an
administrator on her behalf.6

Notes

1 The half value of the house, say £54,000 allowing for a 10%
discount for occupancy of the surviving joint tenant would
not be counted as part of the estate for distribution on the
intestacy.
2 Personal chattels should not be sold without a special reason.
There may, of course, be no choice, for example, the chattels
may have to be sold in order to pay debts.

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3 In problems where there are a number of persons under the

heading ‘issue’, for example, where a son or daughter is
predeceased, survived by children and one of those children
has died leaving children, then it is useful to draw a family
tree. Once you have identified those who are entitled, then
draw a vertical list in the order of priority of entitlement. It is
useful to list all those who survive and could be on the list of
priority rather than simply those who are potentially entitled,
because the list also then gives you the order of entitlement to
a grant to the estate.
4 The amount which a surviving spouse receives where the
surviving spouse elects to capitalise the life interest is
calculated in accordance with the Intestates Succession
(Interest and Capitalisation) Order 1977. The calculation is akin
to a notional purchase of an annuity for the spouse. The
younger the spouse, the higher the capital sum, although it
would never equal the full capital value of the fund supporting
the life interest. A surviving spouse may wish to capitalise
where the fund is so small that the administration charges to
continue the trust do not make it worth while or, simply where
the spouse needs additional capital rather than income.
5 The hotchpot provisions in ss 47 and 49 of the Administration
of Estates Act 1925 were abolished by s 1(2) of the Law
Reform (Succession) Act 1995, effective for deaths on or after
1 January 1996.
6 Betty would also lose her entitlement if Alec died on or after 1
January 1996 and Betty failed to survive Alec by 28 days
including the date of Alec’s death—s 1(1) of the Law Reform
(Succession) Act 1995.

Question 16

Arthur died on 1 February. He had made a will some years before

which left £20,000 to his brother, George and the residue to Arthur’s
wife, Ruth. The will was validly executed and witnessed by Ruth
and Arthur’s neighbour, Susan.
At his death, Arthur’s estate consisted of:

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• a house, Blackacre, in Arthur’s sole name with a market value

of £180,000;
• £10,000 in a building society account held jointly with Ruth;
• two insurance policies, each for £50,000, one of which was
written in trust for his twin grandchildren, Emma and Fred;
• quoted shares, investments, bank accounts and cash to a total
value of £35,000;
• personal effects, furniture and clothing worth £10,000.

Arthur was survived by his wife, Ruth and his brother, George.
His daughter, Trixie, predeceased leaving two twin children, Emma
and Fred, now aged seven. Also surviving was Kate (aged 40),
Ruth’s daughter from her previous marriage.
Advise on the distribution of Arthur’s estate, ignoring the
possibility of any claims under the family provision legislation.
How would your answer differ in the following (unrelated)
circumstances?:

(a) Ruth died on 20 February;

(b) Ruth survived, but Emma and Fred died in a car crash three
years after Arthur’s death.

Answer plan

The question involves the distribution of Arthur’s estate on partial

intestacy. After the initial point concerning the witnessing of the
will and the impact of s 15 of the Wills Act 1837, the property
which does not fall on intestacy should be isolated. As the intestacy
here involves spouse and issue, the precise entitlement of each
should be ascertained, with particular attention being paid to
elections open to the surviving spouse. The value of Blackacre is
important here.
The alternatives involve a detailed knowledge and application
of the Law Reform (Succession) Act 1995, as it relates to the
entitlement of a spouse and the consequences of issue failing to
attain the contingency age under the statutory trusts.

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Answer

Arthur appears to have left a valid will, but, as one of the witnesses,
Ruth, is a beneficiary, the gift to her will fail under the terms of s
15 of the Wills Act 1837. Thus, the only effective gift left by Arthur
is the legacy of £20,000 to his brother, George. The residue will
then pass according to the intestacy rules.
Two items of property in his estate will not be subject to these
rules. The building society account which he held as a joint
tenant with Ruth will pass to her by survivorship. The insurance
policy which was written in trust for his grandchildren will pass
automatically to them as beneficiaries of that policy. The
proceeds can be obtained from the insurance company merely
on production of the death certificate and completion of the
relevant claim form.
As a result, a total of £255,000 is to be distributed in accordance
with the intestacy rules. This figure comprises Blackacre, one
insurance policy, the quoted shares, investments, bank accounts,
cash and the personal effects, less the £20,000 which devolves on
George under the terms of the will.
Arthur left a surviving spouse and issue, so Ruth, as surviving
spouse, is entitled to the personal chattels absolutely, a statutory
legacy of £125,000 and a life interest in half the rest of the estate.
Personal chattels are defined by s 55(1)(x) of the Administration
of Estates Act 1925 and, in this case, will comprise the effects,
furniture and clothing to a value of £10,000. This will leave £245,000
to be distributed. Next, the statutory legacy will be taken, leaving
£120,000. Ruth will then be entitled to a life interest in half of this—
£60,000. The rest of the estate will pass to the issue on the statutory
trusts.
One of the features of the intestacy rules is that (apart from
personal chattels) they do not specify any particular items of
property. It is solely a question of monetary value. Particular
difficulties may arise in respect of the matrimonial home, as the
intestacy rules themselves give the surviving spouse no
automatic right to take it. However, the surviving spouse, Ruth,
has a right to elect, within 12 months of the issue of the Grant
of Representation, to appropriate the matrimonial home as part
of her absolute entitlement. This is subject to the proviso that
she must be resident therein at the date of the intestate’s death

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and that a court order will be required in certain circumstances

(broadly where it is partly used for purposes other than that of
a dwelling house). The problem here is that Ruth’s absolute
entitlement (ignoring the personal chattels) is only £125,000 (as
it does not include the value of the life interest), whereas
Blackacre is valued at £180,000.
In order to make up the difference, there is another election
open to Ruth. She has a right, again to be exercised within 12
months of the issue of the Grant of Representation, to capitalise
the life interest.1 The right arises under s 47 of the Administration
of Estates Act 1925 and the capital value to be received is calculated
on an actuarial basis in accordance with the schedules of the
Intestate Succession (Interest and Capitalisation) Order 1977. If
the capitalised value of the life interest added to the value of the
statutory legacy exceeds the value of Blackacre, then Ruth can
appropriate it.2 Even if there is enough capital available, it means
that Ruth can take the house, but will get no ‘money’ from the
distribution which may render it hard for her to maintain her
standard of living.
If the value of the capitalised life interest together with the
statutory legacy is still insufficient, Ruth can seek to provide the
extra money herself. If she does so the personal representatives
are still bound to pass the property to her—Re Phelps (1980).
The rest of the estate will pass to the issue on the statutory trusts.
The term ‘issue’ includes only blood relations so Kate as a stepchild
will receive no benefit (unless she was formally adopted). They
will take an interest in two distinct funds, one absolute fund for
them of £60,000 and one fund of £60,000 following the death of
Ruth, the life tenant. The statutory trusts are defined in s 47 of the
Administration of Estates Act 1925 as:

• equally for all members of the class living at the intestate’s

death;
• who attain 18 or marry before that age;
• but if any predecease leaving issue who survive, the issue on
attaining 18 or earlier marriage take per stirpes the share their
parent would have taken.

In this case, therefore, Emma and Fred will take the share their
mother, Trixie, would have taken. They will have a contingent
interest (as they are only seven) of half each.

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The Law Reform (Succession) Act 1995 imposes an automatic

survivorship period of 28 days in respect of interests devolving
on the surviving spouse. Thus, in this case, if Ruth died on 20
February, she (or her estate) will not be able to benefit under the
intestacy rules. The property will be distributed as if she had
predeceased and would therefore go the issue absolutely. Emma
and Fred would take half the entire intestacy property each
contingent on attaining 18 or earlier marriage. It should be
noted that this will have no effect on Ruth’s right to take the
building society account which passed to her by survivorship.
If Emma and Fred died three years after Arthur, neither
would have reached 18 and their entitlements would not have
become vested. In these circumstances, the estate would have to
be re-distributed as if Arthur had died without issue. Ruth as
surviving spouse would now be entitled to an increased
statutory legacy of £200,000 and half the rest absolutely.3 This
means that she now has enough to appropriate the matrimonial
home as part of her statutory legacy—but coming three years
after her husband’s death, it is a little late in the day. The rest of
the property would now go to Arthur’s parents if they were
alive at Arthur’s death and, failing them, to George as the
brother of the whole blood.

Notes

1 If the life interest is capitalised, it will prevent any

complications of the continuance of a trust for the spouse as
there will no longer be any life interest. It will also increase
the value of the absolute interest going to the issue. This latter
point may have Inheritance Tax repercussions, as it involves a
decrease in the amount of spouse exempt property and the
possibility of a higher tax bill. Careful calculations should be
made before making a final decision.
2 The value of the matrimonial home is taken on the date it is
appropriated so in times of rising prices, it is wise to elect
quickly.

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3 The re-distribution of the estate would also have implications

on any Inheritance Tax paid by the estate as the spouse’s
exempt share would be increased.

Question 17

‘The definition of “personal chattels” in s 55(1)(x) of the

Administration of Estates Act 1925 is defective and out of date
and should be replaced.’
Discuss.

Answer plan

This essay question is not simply asking for a description of

personal chattels followed by some case examples, but rather it is
asking for a critique of the section. The essence of the section should
be given, not necessarily in full detail, followed by examples in
the way in which the section has been interpreted. Finally, a critique
should be considered.

Answer
Where a person dies wholly intestate or partially intestate, the
order of persons entitled to share under the intestacy is determined
by s 46 of the Administration of Estates Act 1925. Where the
intestate is survived by a spouse, the spouse is entitled, inter alia,
to the personal chattels as defined by s 55(1)(x).
The section is somewhat dated in its tone, as it is now over
75 years old. The section specified certain items, for example,
carriages, horses, stable furniture and effects, domestic animals,
linen, china, glass, books, furniture, jewellery and includes
general words by reference to ‘articles of personal use’. There
are specific exclusions for items used for business purposes and
the section excludes money or securities for money. The
intention of the section is to cover items of personal and
domestic use and ornament. Where an item falls within the
definition, the item will pass to the surviving spouse absolutely.

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Q & A ON SUCCESSION

Litigation has arisen over particular items in view of their value.

For example, in Re Reynolds (1966), the court was asked to
consider whether a stamp collection made by the testator as a
hobby came within the definition where the testator by his will
had bequeathed the personal chattels as defined by s 55(1)(x).
The case (heard by Mr Justice Stamp!) is a good illustration of
the approach. Counsel for the beneficiary tried to argue that the
stamp collection came within the reference to ‘books’. The judge
rejected this argument, but did say that the collection came
within the general words of ‘personal use’. This interpretation
was underlined by the fact that the testator had collected the
stamps as a hobby. The judge did draw the contrast that if the
testator had bought the collection in one lot and locked it away,
one could argue that this had been bought for investment
purposes rather than personal use and enjoyment.
An example where the chattel came within a specific
enumeration is Re Hutchinson (1955), where the intestate
deceased owned 12 race horses which were used entirely for
recreation. A summons for direction was taken for the court to
determine whether the race horses were personal chattels and,
therefore, would pass to the surviving spouse absolutely. The
court said that although the reference to ‘horses’ in the sub-
section was mentioned in the context of ‘stable furniture and
effects’, there was nothing in the section to suggest the term
should be confined to work horses; therefore, horses used for
domestic purposes, here race horses, could be included. There
was no suggestion that the race horses were used as part of a
business; therefore, the court concluded that they were personal
chattels. Another example of where a specific reference was
queried in the context occurred in Re Whitby (1944), where the
court had to consider whether a quantity of cut but unmounted
diamonds fell within the word ‘jewellery’. Did one link the word
jewellery to adornment, therefore including only jewels which
would be in a setting, for example, such as a brooch. The court
referred to the Oxford Dictionary meaning of jewellery which
referred to jewels as ‘jewels collectively or as a form of
adornment’. The court concluded that therefore individual
precious stones could still be considered to be jewellery within
the definition.
As referred to above, litigation has arisen in view of the high
value of a particular item in relation to the remainder to the

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estate. In Re Crispin’s WT (1975), the testator bequeathed all his

personal chattels to his sister. The question arose as to whether
the gift included a large collection of clocks and watches which
the testator had inherited. The total value of the estate at death
was £80,000 and £50,000 of this represented the value of the
collection. At first instance, the court doubted whether the
testator intended to make such a high value gift to his sister and
ruled that the collection fell into residue. On appeal, the court
said that the judge had been swayed by the high value of the
collection when the value was really irrelevant. The issue was
whether the collection came within the definition. The testator
had assisted his friend to build up the collection and the friend
bequeathed the collection to the testator. The testator bought a
larger house to accommodate the collection, but thereafter never
added to the collection. He ensured that basic maintenance
work was carried out on the clocks and he occasionally wore
one of the watches. The watch collection was normally secured
in a large chest. The Court of Appeal held that clocks are articles
or furniture in the ordinary sense of the word and it did not
matter where the items were kept, whether in a locked room or
in a museum. The court went on to rule that the collection of
watches were personal chattels, since they were intrinsically of
personal use. Russell LJ went on the query the example given by
Mr Justice Stamp in Re Reynolds when he contrasted the
situation where a person buys a stamp collection for investment.
Russell LJ said that this could still be considered an item of
personal use within the section.
The section is clearly dated. The reference to horses, stable
furniture and effects is redolent of an age gone by. Further, the
structure of the section is such that litigation has sought to
attempt to include items within specific references, Re Reynolds
is a case in point, rather than using general words of personal
use. The Law Commission recommended in its recent review of
intestate distribution that the surviving spouse should take all
the property of the deceased on the intestacy. If this
recommendation had been taken up, this would have obviated
the need for consideration of the section on intestacy. However,
a common provision in wills, Re Crispin’s WT is a case in point,
is where the testator bequeaths his personal chattels ‘as defined
by s 55(1)(x)’. One could still have interpretation problems
therefore, unless the section was repealed and replaced by a

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much broader definition based upon articles of personal use and

enjoyment. Re Crispin’s WT does indicate that the value of the
item is irrelevant in determining whether or not it is a personal
chattel. What is still perhaps left open is where items are bought
purely for investment.

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 CHAPTER 6

FAMILY PROVISION

Introduction

Under the terms of the Inheritance (Provision for Family and

Dependants) Act 1975, certain categories of individuals to apply
for reasonable financial provision from the deceased’s estate.
Application must be made within six months of the issue of the
Grant of Representation, though the court has a general discretion
to extend the time limit—Re Salmon (1980), Budd v Fowler (1998).
Applications for family provision involve a two stage process. First,
the court must be satisfied that the applicant has locus standi by
falling within one of the categories in the Act. Secondly, given
that an applicant has locus standi, the court must assess whether
or not the deceased made reasonable financial provision for them.
The categories of applicant are set out in s 1(1) of the Act and
comprise:

• spouse of the deceased;

• any person who was living in the same household as the
deceased, and as husband or wife of the deceased, for the two
years immediately before the deceased’s death (this new
category was added by the Law Reform (Succession) Act 1995);
• former spouse who has not remarried;
• child of the deceased;
• person treated by the deceased as a child of the family in
relation to any marriage to which the deceased was a party;
• a person who immediately before the death of the deceased
was being maintained by the deceased otherwise than for full
valuable consideration, (often referred to as ‘a dependant’).

The category which has caused the most difficulty is the final one
(the dependant) and the courts have had certain problems in
ascertaining whether the deceased was maintaining the applicant
or vice versa: see Re Beaumont (1980), Jelley v Iliffe (1981), Bishop v
Plumley (1991) and Bouette v Rose (1999). The new category of
cohabitee has not (perhaps surprisingly) been the subject of much
judicial pronouncement.

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Q & A ON SUCCESSION

Once the court is satisfied that a particular person is a proper

applicant, it goes on to assess whether reasonable financial
provision has been made. There are two different standards by
which it judges:

• the surviving spouse standard—reasonable financial provision

in all the circumstances whether or not that provision is for
maintenance;
• the ‘maintenance’ standard (for all other applicants)—
reasonable financial provision in all the circumstances for the
applicant’s maintenance.

In arriving at a conclusion, the court is required to have regard to

guidelines laid down by the Act. There are common guidelines
which are relevant to each category of applicant:

• present and future financial needs and resources;

• obligations and responsibilities of the deceased;
• size and nature of the estate;
• any physical or mental disabilities;
• any other matter including the conduct of the applicant or
any person.

In addition there are special guidelines for each individual category

of applicant.
If the court decides that an applicant is successful, it must not
only consider how much provision should be given, but from
which of the entitlements of the original beneficiaries that provision
should come. Thus, the guidelines refer not only to (say) the
financial needs of the applicant, but also to the needs of any
beneficiary of the estate.
Inevitably, when one is considering an area of law based on
value judgments, each case must very much depend on its own
particular circumstances. However, there are some issues of
principle involved. The cases of Re Besterman (1984), Re Banning
(1984) and Re Krubert (1996) are good illustrations of the attitude
adopted by the courts when faced with claims by a surviving
spouse. The cases of Re Coventry (1979), Re Leach (1985), Re
Callaghan (1984) and Re Pearce (1998) illustrate the approach to
claims by adult children (or children of the family) and stress the

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need for some special moral obligation to the applicant by the

deceased.
The court has wide powers to make whatever order for
financial provision it thinks fit. For example, periodic payments,
lump sum orders and transfers of property orders may be made.
In addition, under ss 10 and 11, there are wide anti-avoidance
provisions.
Problem questions in this area tend to be long as the examiner
has to set the scene. It is probably advisable to take each applicant
in turn, advise as to their locus standi and then discuss the factors
influencing the court in granting an award.

Question 18

Alan was married to Bertha and they had two children, Charles
and Dora. Alan was frequently violent to Bertha and, in 1998,
Bertha obtained a decree nisi of divorce. At the time of the
divorce, Bertha had a nervous breakdown and still suffers from
depression and other mental illnesses, necessitating continuous
medical attention and frequent short stays in hospitals. The
decree was never made absolute. Bertha received no property or
financial provision from Alan on the divorce, because Alan had
no money or assets at the time. After the divorce, Charles, aged
nine, was taken into care and remains in a local authority
children’s home. Dora, aged five, went to live with Bertha’s
unmarried sister, Freda, who has no children of her own. Freda
tried to formally adopt Dora, but the application was refused, as
her circumstances were thought to be unsatisfactory. Dora
remains with her.
After the divorce, Alan went to live with Gina, a widow, in
Gina’s house. He was demanding of her attentions and frequently
needed nursing through illnesses which Gina lovingly provided.
He did not work and they initially lived on Gina’s small widow’s
pension. This year, Alan inherited £150,000 from his father and he
used the income and some of the capital for the living expenses of
himself and Gina.

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Q & A ON SUCCESSION

Alan has now died intestate, leaving an estate of £100,000.

Advise on the distribution of the estate and on any possible claims
under the Inheritance (Provision for Family and Dependants) Act
1975 by any of the persons named above.
How, if at all, would your answer differ if Alan had made a will
leaving his whole estate to Gina?

Answer plan

The answer should be divided into three parts. First, an explanation

as to the distribution on intestacy. Secondly, the possible claims of
each of the main parties under the Family Provision Legislation
needs to be considered. Thirdly, the position had Alan died fully
testate needs to be considered and contrasted with the position
on a total intestacy.

Answer

Given that Alan has died intestate, the whole of his estate would
pass to the surviving spouse Bertha. The reasons for this are that
Bertha is still regarded as the lawful spouse because the decree
was never made absolute and she is entitled a statutory legacy of
£125,000 in addition to the value of personal chattels absolutely,
given that there are issue who also survive the intestate. Since the
estate at death is under £125,000, the whole of the estate passes to
Bertha.
The persons would could consider an application for
provision under the Inheritance Act 1975 are the children
Charles, Dora and Gina. The children would have automatic
locus standi before the courts to apply under s 1(1)(c) of the Act.
Given the events and the state of health of Bertha, it is unlikely
that the children would be cared for by her. Given their young
ages, they could have a strong moral claim for an order for
reasonable provision to be made to provide for their
maintenance and education. Although the Court of Appeal in Re
Coventry (1979) says that merely because one is a child does not
of itself entitle an order to be made, the youth and
circumstances of the children here would appear to give them

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a strong claim on some provision towards their living expenses

and education.
Gina would seek to prove that she fell within the category of a
person who was living in the same household and as the wife of
the deceased. In Re Watson (1999), it was found that it was not
necessary for the parties to share the same bed in order to live
together as husband and wife. Companionship was what mattered.
If they were cohabiting and the cohabitation had been continuous
for a period of two years ending with the death of Alan then Gina
would not be required to prove prior dependence in order to
establish locus standi—s 2(1) of the Law Reform (Succession) Act
1995. Further, in considering an award, in addition to the general
matters to be taken into account under s 3(2)(a)-(f) of the 1975 Act,
the court will take account of the length of time Alan and Gina
have lived together and the contribution Gina has made to Alan’s
welfare.
If the evidence shows the cohabitation was not continuous for
the two year period or the parties merely shared accommodation,
then Gina would have to prove prior dependence. She would have
to prove that she was being maintained either wholly or partly by
Alan immediately before his death. Further, it would have to be
established that Alan was not receiving full valuable consideration
for any maintenance he may have provided. The problem here is
whether or not Alan was dependent upon Gina. Stephenson LJ in
Jelley v Iliffe (1981) said:

To discover whether the deceased was making such contribution, the

court had to balance what she had contributed against what the
applicant had contributed. If there was any doubt about the balance
tipping in favour of the deceased being the greater contributor, the
matter must go to trial. If however the balance was bound to come
down in favour of the applicant being the greater contributor, or if the
contributions were equal, there was no dependency of him upon her
either because she depended upon him or there was mutual dependency
between them and this application should be struck out.

Gina would therefore have to establish that she was dependent

upon Alan. In Bishop v Plumley (1990), in the Court of Appeal,
Butler-Sloss LJ said that it wasn’t a matter of detailed calculation
but looking at the problem in the round and adopting a common
sense approach as to dependents. Here, although one could

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argue that until last year, Alan was dependent upon Gina, since
the inheritance, Gina could argue dependency to a degree upon
Alan thereby giving her locus standi. In Re Beaumont (1980), it
was argued that for the applicant to show locus standi, it had to
be proved that there was some ‘assumption of responsibility’ by
the deceased for the maintenance of the applicant. This was
doubted in later cases and finally disapproved in Bouette v Rose
(1999). In Bouette v Rose (1999), a mother claimed to be the
dependant of her severely mentally disabled daughter. The
daughter had received an award of damages which was being
administered by the Court of Protection and it was found that
the mother indirectly benefited from provision made for the
child’s needs by the court. One of the questions was how could
a mentally handicapped child assume responsibility for the
maintenance of her mother? The court found the idea
formulated in Re Beaumont (1980) to be unsound. The making of
a substantial contribution to another’s needs raised an inference
of an assumption of responsibility. There was nothing absurd
about the notion of the Court of Protection acting as the
conscience of a patient and making provision for those for
whom the patient, if of full mental capacity, would have felt a
moral obligation. Thus, although on the above authorities, it is
not strictly necessary it would assist Gina’s case if she could
produce some evidence of assumption of responsibility on the
part of Alan following the inheritance.
In considering whether Alan has made reasonable provision
for Gina, the court will want to know details of her assets and the
standard of life Alan and Gina had assumed following the
inheritance. Against this, the court will consider the merits of the
claims of the young children and Bertha. The court has wide
powers to order transfer of property, lump sum orders or income
provision for successful applicants.
If Alan had made a will leaving his whole estate to Gina, then
applications would be considered by Bertha as the surviving
spouse under s 1(1)(a) and the children. The children’s case has
been considered above. The criterion in the case of Bertha would
be one of the spouse provision rather than maintenance, because
decree absolute has not been granted. This provision enables the
court to consider an award based upon an analogy if the
partners were divorcing at the time of the application. The court
will consider Alan’s conduct and Bertha’s state of health. The

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court will take account of the length of the marriage and the
circumstances of the separation and subsequent decree nisi. See
dicta in Re Besterman and Re Banning, both in 1984. The court will
take account of Bertha’s age, her health and the likelihood that
she is not going to obtain a steady income from employment.
There is a strong chance therefore that Bertha would be
successful in obtaining either an income provision award or a
lump sum. Against this, the merits of Gina’s claim would need
to be considered and the standard of life to which she and Alan
had become accustomed following the inheritance.

Question 19

Tom married Anna 20 years ago. They have a daughter, Kate, aged
10, and Anna has a son Robin, aged 19, from a previous, short
lived marriage to David, who died 10 years ago.
Tom has always treated Robin as his son, but their relationship
became strained three years ago and this lead to arguments
between Tom and Anna. Three years ago, Anna discovered Tom
was having an affair with his secretary Helen and later in the same
year, Tom left the matrimonial home, The Gables’, and moved into
an apartment with Helen. The lease was in Tom’s name; Tom and
Helen agreed to share the day to day expenses.
Anna refused to believe the marriage was over and would
telephone Tom regularly at his office. After three months, Tom
persuaded Helen to leave her post as his secretary and paid her
an allowance to make up for her loss of salary. Helen no longer
shared the expenses of the apartment, but looked after the
accommodation and co-hosted dinners there with Tom and his
business associates. In addition, Tom paid the expenses of The
Gables’ together with an allowance to Anna.
Tom had indicated several times to Helen he would like to
leave city life and live in the country, and, in response to her
enthusiasm, donated £5,000 to a wildlife sanctuary, and said he
would buy her a cottage in the Lake District. Helen busied
herself obtaining particulars and visiting several properties.
However, she grew impatient when Tom appeared reluctant to
make his mind up. Eight months ago, Tom returned to Anna at
‘The Gables’. However, six weeks before his death, he started to

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stay at the apartment with Helen during the week, returning to

‘The Gables’ at weekends. Anna accepted this arrangement as
all along she had hoped her marriage would continue and,
despite the advice of friends, had not sought to take any
matrimonial proceedings.
Tom died a month ago in a road accident. His estate is valued
at £450,000 including ‘The Gables’, which is in Tom’s name,
personal effects, company shares and pension rights. The lease on
the apartment has six months left and the landlords have served
notice to quit. By his will, Tom left ‘The Gables’ to Anna for life,
the remainder to the World Wildlife Fund (WWF); shares in Glunk
Limited which Tom believed to be worth £30,000 to Kate and Robin
in equal shares; £10,000 to Helen and the residue to the WWF.
After Tom’s death, the value of the holding in Glunk Limited falls
to £6,000.
Consider the claims, if any, Anna, Kate, Robin and Helen may
have under the Inheritance (Provision for Family and Dependants)
Act 1975.

Answer plan

In this question advice has to be given to four separate parties.

The best approach is to divide the answer into four separate parts
advising in turn Anna, Kate, Robin and Helen. In each case, locus
standi should be considered first and then, on the basis that
reasonable provision has not been made, the factors which would
be considered in the individual case. No hard and fast conclusion
could be made, because there are too many imponderables. The
purpose of a question of this type is to elicit a knowledge and
understanding of the Inheritance (Provision for Family and
Dependents) Act 1975.

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Answer

There is the initial presumption that Tom has died domiciled in

England or Wales; therefore, action could be contemplated under
the Inheritance (Provision for Family and Dependents) Act 1975.
Anna is the lawful spouse. Although Tom and Anna separated
three years ago, there is no evidence that they have divorced. Anna
would therefore have locus standi as the surviving spouse. The
basis of an award for reasonable financial provision would
therefore appear to be the spouse standard under s 1(2) (a) of the
Inheritance Act. This section says that the provision is that that
would be reasonable in all the circumstances, whether or not the
provision is required for the maintenance of the applicant. Section
3(2) says that the starting point on this basis is the amount the
applicant could have expected to have received on a divorce.
Although the parties have separated, there is no evidence that a
decree of judicial separation has been made. The significance of
such a decree is that the basis of reasonable provision is then the
maintenance standard.1
What does the divorce analogy test mean? In Re Besterman
(1984), Oliver LJ said that the correct starting point was the likely
provision which the applicant would have received if the divorce
proceedings had been instituted.2 The court applied a three point
test in saying one should consider first, the provisions of living
accommodation for the spouse, secondly, income and capital to
meet the costs of daily living and, thirdly, there should be some
provision for contingencies. The Court of Appeal stressed that each
case depends upon its facts, but the court did indicate guidelines
in arriving at an award. Accounts should be taken of the length of
the marriage and the relationship between the parties. Was it a
happy marriage? The contribution made by the applicant to the
welfare of the family should be considered. The age of the
surviving spouse at the date of the application is relevant in
considering whether the surviving spouse is young enough to
either obtain employment or return to employment. Finally, the
court would consider what the applicant would have received if
the parties were divorcing.3 Although the Court of Appeal stressed
that each case depends upon its own facts, the principles
enunciated in Re Besterman were considered and applied in the
same year in Re Bunning. Here, the parties had separated four

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Q & A ON SUCCESSION

years before the death of the husband and after 15 years of

marriage. The court found that there were mitigating
circumstances in the wife’s favour leading to the separation and
that, on divorce, the applicant wife would have received half of
the estate taking into account gifts already made. The applicant
wife was awarded £60,000 out of a total estate of £200,000, but
allowing for some £47,000 which had been given to her during
the deceased’s lifetime.
There is no indication as to whether Anna has resources of her
own save the reference to the fact that Tom has paid the expenses
of the former matrimonial home together with an allowance to
his wife. Anna has been left the former matrimonial home for life.
Whether she will succeed in an application to have the title of the
house made over to her is debatable. The fact that she has been
left a life interest in the house does meet the first point of the three
point test in Re Besterman that accommodation has been provided.
Whether Anna would be better off in obtaining the freehold,
thereby having the flexibility of selling the house at a later date
and receiving the proceeds would depend upon the extent of the
provision in her favour and the merit of the claims of other parties.
In Re Clark Dec’d (1991), the court refused an application by a
widow where the parties had been married for 12 years and, in
addition to a lump sum of £25,000, the widow had been left a life
interest in the former matrimonial home. Reference was made to
the guidelines in Besterman and given that the widow had a lump
sum provision coupled with the life interest, the court ruled that
provision was adequate. Again, in Davis v Lush (1991), the Court
of Appeal rejected an application by a widow where a life interest
had been given in the house. The widow wanted the freehold title
to be transferred to her on the basis that she wanted the security
of owning her own home; the Court of Appeal rejected the claim
saying that the trial judge had not erred in his judgment. In Re
Krubert (1996), the Re Besterman guidelines were again approved.
The court did stress, however, that the divorce analogy was only
a starting point as with a divorce the future financial needs of two
households had to be reviewed, whereas with a family provision
application, there is only the surviving spouse to consider.
Kate would have no problem establishing locus standi as she is
the lawful child of Tom and therefore qualifies under s 1(1)(c). A
limited provision has been made for Kate and her stepbrother in
the bequest of the shares. However, the shares do not prove to be

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as valuable as was believed. Kate would have to consider at the

date of death whether reasonable provision has been made in order
to consider making an application, bearing in mind that application
should be made within six months of the grant of title (s 4) and
the question whether reasonable provision has been made is
determined on the evidence available at the date of the application
(s 3). The court could therefore take into account the fall in the
value of the shares in Glunk Limited. The strongest factor in Kate’s
case is that she is aged 10. A key factor, although not a pre-requisite,
is the moral obligation owed by the deceased to the applicant and,
in the case of a young child whose life and education is ahead of
her, the issue of moral obligation would be a strong one. The
criterion on which an award would be considered would be one
of maintenance; maintenance does not mean subsistence,4 but
denote payments which directly or indirectly enable the applicant
to discharge the recurrent cost of daily living. Provision for Kate’s
future education would clearly be an important factor in this
regard. In Re Coventry (1979), the Court of Appeal said that
reasonable provision was a question of fact, the judge making a
value judgment. The courts do look for special factors and moral
obligation would be the key issue in this regard. Further the court
must take account, under s 3, of the merits and claims of other
applicants as well as the beneficiaries under the will. A factor in
this latter regard would be the residue going to an institution
namely the charity, rather than individual beneficiaries. In Can v
Can (1997), the application of a relatively young child was
postponed until her 21st birthday with liberty to restore at any
time. The court felt that as the child was currently being looked
after by her mother, her precise requirements might not become
apparent until that later date. This sort of solution might be applied
in Kate’s case.
Robin, as the stepson of Tom, would have to establish locus
standi under s 1(1)(d), that is, as a ‘child of the family’. The most
authoritative statement in regard to the meaning of child of the
family is that of Slade LJ in Re Leach (1985). He indicated that
treating someone as a child of the family means more than a
display of affection or the provision of birthday or Christmas
presents. It denotes an assumption of responsibility which only
a parent would assume. There is no indication as to what
provision Anna’s former husband made for Robin, but it is
given that Tom had always treated Robin as his son, albeit that

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Q & A ON SUCCESSION

the relationship had become strained in recent times. Further,

under the terms of the will, Robin is sharing the gift of the
shares with Kate. The facts would seem to suggest, therefore,
that Tom does treat Robin as a child of the family, thereby giving
Robin locus standi to apply. The criterion would again be the
maintenance standard. Robin is aged 19 and evidence would
need to be adduced as to whether or not he has completed his
education or whether he is continuing in education, thereby
establishing a stronger obligation. The Court of Appeal in Re
Coventry, reiterated by the Court of Appeal in Re Harlow v
National Westminster Bank plc (1994), pointed out that the mere
fact of a relationship of father to son or, in this case, an assumed
son is not in itself sufficient to establish a claim. There must be
some additional factor such as moral obligation. In recent cases,
this point has again been strongly emphasised—Re Abram
(1996), Re Pearce (1998). The fact that Tom, aged 19, has yet to
make his way in life could establish the issue of moral
obligation, but without such an additional factor, his claim
would not be as strong, for example, as that of Kate.
The final possible applicant is Helen who could consider an
application under s 1(1)(e). Although it would appear Tom and
Helen were cohabiting, the problem for Helen is the
cohabitation has not been continuous. By returning to Anna,
Tom has broken the period of two years laid down by s 2(1) of
the Law Reform (Succession) Act 1995. The section states the
period of cohabitation must be continuous for a period of two
years ending with the death of the deceased. Even if Tom had
not returned to Anna eight months ago, by living at the
apartment in the week and returning to ‘The Gables’ at
weekends, would the court consider this to be continuous
cohabitation with Helen within the context of s 2? This is
doubtful. If, as is likely, s 2(1) of the 1995 Act will not apply, this
does not mean Helen cannot apply for provision. Helen would
have to establish that she was being maintained, wholly or
partially, by Tom immediately before his death. In addition, in
order to establish locus standi, Helen would have to show that
they had not entered into any bargain, that is, that Tom was not
in receipt of full valuable consideration in return for any
provision for Helen.
The leading case on establishing locus standi under sub-category
(e) is Jelley v Iliffe (1981). Here, the Court of Appeal referred to

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balancing the contributions between the respective parties. If the

deceased was the greater contributor towards the well being of
the applicant, then locus standi is established and the matter could
proceed to determine what should amount to responsible
provision. In Bishop v Plumley (1990), the Court of Appeal said
that in determining contribution, one should look at the problem
in the round and adopt a common sense approach rather than
fine balance compensations. Dependence would appear to have
been established here in Tom’s persuading Helen to leave her
employment, her receiving an allowance from Tom and co-hosting
dinners. Dependence does not have to be simply in monetary
terms, but could be the provision of accommodation, as in Re
Wilkinson (1978).
Helen would have to establish dependence immediately after
the death. Although their relationship appears to have become
strained, there is no suggestion that Tom has left Helen, as was
the case in Kourgey v Lusher (1982).
The criterion in making an award would again be the
maintenance standard. The level of support is determined not
only by reference to the applicant’s financial circumstances, but
also regard would be had to the standard to which Helen had
become accustomed: see, for example Re Inns (1947) and Malone
v Harrison (1979).5 The court would take into account the legacy
received under the will together with resources Helen may have
on her own account, her age and the possibility that she could
return to paid employment together with some provision for
accommodation. The reference to the possibility of buying a
cottage in the Lake District would assist her in claiming some
provision for accommodation; however, she could not pursue
the possibility for an action for proprietary estoppel, for
example, in Re Basham (1987), because Tom never actually
purchased the cottage.
Provision for the respective applicants is out of the net estate;
that is the gross estate less the bonafide debts, claims and
taxation. The court has power under s 10 to claw back property
where the deceased has made a disposition within six years of
the death with a view to defeating the act. Whether one could
apply s 10 to the donation to the wildlife sanctuary is debatable.
In Re Bunning, the widow applicant sought to claim a gift to
charity, but the court rejected her claim on the basis that both the
applicant and her husband had agreed to make the donation.

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Q & A ON SUCCESSION

Notes

1 Had a decree of judicial separation been made and had it

continued until the death of the deceased, the application
would not be treated as having been made by the surviving
spouse. The standard applied is one of maintenance. However,
under s 14, the court has a discretion to apply the surviving
spouse standard in certain circumstances to judicially
separated spouses.
2 In Re Besterman, the parties had been married for 18 years,
during which time they enjoyed a high standard of living. The
deceased husband left a net estate at death of £1.5 million. He
left his widow (the applicant) a life interest in £100,000,
personal chattels and the use of certain works of art. The
residue of the estate was left to Oxford University. The husband
had miscalculated as to the needs of his wife in maintaining
the standard of living to which she had become accustomed.
The court awarded her a lump sum of £378,000.
3 In some cases, the divorce analogy test is of limited assistance.
For example, in Winfield v Billington (1990), the Court of Appeal
was unable to derive much assistance from the test because it
was impossible to say which parent would have been awarded
custody of the children of the marriage and the nature of the
ancillary relief order which would have been would have
hinged to a very large extent on the custody order.
4 See Re Christie (1979), which has been criticised by the Court
of Appeal in Re Coventry (1979).
5 Cases under the earlier legislation should be viewed with
caution. However, the cases can be constructive as the factors
to be taken into account in making an award.

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Question 20

How have the courts construed the meaning of maintenance in

the Inheritance (Provision for Family and Dependants) Act 1975?

Answer plan

There is no statutory definition of maintenance. The intention of

the question is to elicit a knowledge of judicial comment upon the
meaning of maintenance.

Answer

The categories of person who can apply for financial provision

from the estate of a deceased individual who has died domiciled
in England and Wales are set out in sub-paras (a)–(e) in s 1(1) of
the Inheritance (Provision for Family and Dependants) Act 1975
(referred to as the Inheritance Act). Section 1(2), referring to
reasonable financial provision in the case of applicants other than
the spouse of the deceased, means such financial provision as
would be reasonable in all the circumstances of the case for the
applicant to receive for his maintenance (s 1(2)(b)).
There is no statutory definition of maintenance. Various
principles have emerged through the case law. It was said in Re
Christie (1979) that maintenance does not mean subsistence. In Re
Christie, there was an application by an adult son who was able
bodied and who had a steady job in the estate of his deceased
mother. By her will, made in 1963, the mother had inter alia devised
her interest in a house in Essex to her son. In 1971, after the death
of her husband, the mother executed a deed of gift of her share of
a London house to her daughter and continued to live in the house
in Essex. In 1976, she sold the Essex house and bought a smaller
house. This had the effect of adeeming the devise of the house to
the son. There was evidence adduced that she intended to execute
a codicil, leaving the new house to the son, but she died before
doing so. The result was that the house fell into the residuary estate
to be shared between the son and the daughter. The son then
applied for reasonable provision out of the estate and won an order

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Q & A ON SUCCESSION

securing the transfer of the house to him. The decision has been
criticised in particular in the judgment of Mr Justice Oliver in the
first instance hearing in Re Coventry (1979), when he said:

…it always has to be borne in mind that the 1975 Act, so far as it relates
to applicants other than spouses, is an Act whose purpose is limited to
the provision of reasonable maintenance. It is not the purpose of the
Act to provide legacies or reward for meritorious conduct.

The concept of maintenance, it has been said, denotes payments

which directly or indirectly enable the applicant to discharge the
recurrent cost of daily living. It does not generally include
substantial benefits (see, for example, dicta in Re Dennis (1981)).
In this case, a wastrel son unsuccessfully applied for a hearing
out of time when a death duty liability arose upon the gift he
had received from his father of a farm when his father died
within seven years of making the gift. Liability was to the extent
of £90,000 payable to the revenue. The son had wasted his
inheritance and was only prompted to seek approval of the
court to apply out of time in order to obtain a lump sum award
to pay the tax. The court rejected the application. The idea of
maintenance is therefore one of income provision to enable the
applicant to meet day to day expenses. However, the court will
not simply look at the applicant’s financial position, but
consider also the social standing of the applicant and that
person’s place in society, for example, the dictum of Mr Justice
Wynn Parry in Re Inns (1947). This was one of the rare cases
where there has been an application in a large estate where the
net estate was in excess of £1,000,000.
Evidence may be adduced to the effect that the deceased had
actively encouraged the applicant to adopt a certain standard of
life. This is well illustrated in Malone v Harrison (1979). In this
case, there was an application by a mistress where the deceased
had actively encouraged her to adopt a certain lifestyle and she
had been tutored in becoming dependent upon the deceased.
The deceased had purchased two apartments for the applicant,
one in England and the other in Malta, together with gifts of
jewellery, furs and expenditure of somewhere in excess of £4,000
per annum upon the applicant. The applicant was therefore
encouraged and received assistance by the deceased to adopt a
certain higher lifestyle. The award was in the form of a lump

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sum payment calculated by reference to reflect the income to

which she had become accustomed.
Although the decision in Re Christie has been criticised by the
Court of Appeal in Re Coventry, Christie was not overruled and
does stand for the principle that maintenance may well denote
the well being, health and financial security of the applicant and
his immediate family; the court recognised in this case that the
only way that this could be achieved was by the provision of
capital, namely the transfer of title of the newly purchased
house in Essex. However, the further words of Mr Justice Oliver
in Re Coventry should be noted in this context, namely, ‘the court
has no carte blanche to reform the deceased’s disposition or those
which statute makes of his estate to accord to what the court
itself might have thought would be sensible if it had been in the
deceased’s position’.

Question 21

Alan, a widower, died recently leaving an estate valued at

£120,000 including a house worth £80,000. He left all his
property by his will to his favourite charity. You are consulted
by David, Alan’s illegitimate son, aged 35. A few days after
Alan’s funeral, David was badly injured in an accident which is
likely to leave him seriously disabled and unemployable for the
rest of his life. In a letter found with the will, Alan stated that
he was excluding David from his will ‘because David had
adopted a worthless existence’. David had been working as a
college lecturer prior to the accident.

Answer plan

Alan has not made any provision for David. Is this reasonable in
the circumstances? Consider David’s age, the effect, if any, of the
illegitimacy and the injuries to David after Alan’s death as factors
in building a case for David in an application for reasonable
provision out of the estate of his father.

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Q & A ON SUCCESSION

Answer

In an answer on possible applications under the Inheritance

(Provision for Family and Dependants) Act 1975, one has to
consider initially whether the will of the deceased or intestacy
or a combination of both failed to make reasonable provision for
the potential applicant. If this appears to be the case, then one
has to consider initially whether the applicant has the locus
standi to apply. Then one has to consider the merits of the
application.
In David’s case, as the biological child of Alan, he would be
entitled to apply under s 1(1)(c) of the 1975 Act. There is no age
restriction and ‘child’ for the purposes of s 1 clearly includes an
adult child (see the dicta of Booth J in Re Callaghan, where the court
held that the reference to child refers not to age, but to the
relationship between the deceased and the applicants). However,
a note of caution: the courts will not necessarily look
sympathetically upon the able-bodied adult child either earning
or well able to earn his or her own living (see the dicta in the Court
of Appeal decision in Re Coventry). Note that, although in Re
Christie, the court referred to the meaning of maintenance as
referring to the well being of the applicant, in this particular case,
the decision is, in effect, correcting a will whereby the applicant
received a legacy he argued he should have received but for a
prior ademption. This dicta received unfavourable comment in Re
Coventry.
The criterion on which to base a claim is one of maintenance;
that is to say maintaining the applicant, as far as possible, at the
standard of life to which the applicant has become accustomed.
The court in Re Leach stated that the provision should keep the
applicant neither in luxury nor in misery, but comfortably in
relation to his or her station in life. The Court of Appeal in Re
Coventry said that maintenance does not mean subsistence.
One has to consider the attitude of the deceased and the
reference in the letter. However, the court will not necessarily
accept the deceased’s reasons at face value. The letter can be
admitted under the Civil Evidence Act 1968, but the court will
reserve the right to inquire into the truth of such a statement.
Prima facie, given the age of David and his employment, it would
appear that he would have little chance of a successful claim,

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bearing in mind the dicta in Re Coventry. Mr Justice Oliver said

in Re Coventry that, subject to the court’s powers under the 1975
Act and to fiscal demands, an Englishman still remained at
liberty to dispose of his property in whatever way he pleases or
indeed to leave the distribution of his estate to intestate
succession. The court was reluctant to make an award based
upon maintenance to an able-bodied adult child. However, in
this case, David has been seriously injured after the death of
Alan. The test as to reasonable provision is an objective one and
is to be considered on the basis of the circumstances prevailing
at the date of the hearing (s 3(5)). The court can therefore take
account of supervening events. In this case, the instructing
solicitor should draw the attention of counsel to the issue of
moral obligation in the light of the accident to David. Indeed, it
was recognised in Re Coventry and confirmed in Re Abram (1996)
and Re Pearce (1998) that there should be established some sort
of moral claim over and above the mere fact of blood
relationship. The case for David is further strengthened by the
fact that the beneficiary under the will is a charity rather than
another individual who may have a claim (see the dicta of the
Court of Appeal in Millward v Shenton). Therefore, it would
appear that David, in the light of his unfortunate accident,
would have a strong claim to an award (whether lump sum or
income provision or a combination of both towards his future
maintenance).

Question 22

Romeo died recently, leaving a net estate of £750,000. In his will,

he left a legacy of £30,000 to his aged mother and the rest of his
estate to his son Caspar, 25. Romeo was survived by his mistress
Juliet, 45, who is semi-paralysed following a road accident earlier
this year; their three children, who are aged 22, 18 and nine; and
his widow Diana, whom he deserted 20 years ago, but from whom
he was neither divorced nor judicially separated. Diana has been
living with William for many years and had been supported by
him until his death a month ago.

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Q & A ON SUCCESSION

Advise Diana, Juliet and the three children who wish to apply
to the court for orders under the Inheritance (Provision for Family
and Dependants) Act 1975.

Answer plan

In answers upon the Family Provision legislation, one should

consider first of all locus standi of the respective possible applicants
and then go on to consider their claims and the merits of their
claims. Given that there is a surviving spouse who has neither
divorced nor been judicially separated, then one has to consider
the two tests as to provision, namely the spouse provision and the
maintenance provision.

Answer

One is asked to advise Diana, the surviving spouse, Juliet, the

mistress, and the three children Romeo had by Juliet, that is to
say, excluding his other son Caspar who presumably survives and
has been left the residue of the estate under Romeo’s will.
In order to make a claim under the 1975 Act, the applicants
must prove that they have locus standi before the court. Diana
would have this by virtue of s 1(1)(a) of the 1975 Act as the lawful
wife of Romeo. The children would have locus standi by virtue of s
1(1)(c) and the mistress Juliet may have locus standi under the terms
of sub-para (e).
In order for Juliet to show that she has locus standi, she would
have to show that she was being maintained wholly or partly by
Romeo immediately before his death. It would appear from the
facts that Diana had been supported by Romeo immediately
before his death, that is to say there had been no intention to end
the relationship permanently prior to his death, as in the case of
Kourgey v Lusher. The meaning of ‘maintained’ is set out in s 1(3)
of the Act, which provides that a person will be treated as
maintained if the deceased ‘otherwise than for full valuable
consideration, was making a substantial contribution in money
or money’s worth towards the reasonable needs of the person’.
Given Juliet’s condition, it would appear that she was
dependent on Romeo immediately before the death.

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The respective parties entitled to make application under s 1

do so on the basis that Romeo’s will did not make reasonable
provision for them. Application must be made to the court within
six months of the issue of the Grant of Representation. This is a
substantive rule rather than merely procedural, although the court
does have a discretion to extend the time limit—see the guidelines
laid down by McGarry VC in Re Salmon (1981) and approved in
Budd v Fowler (1998).
Section 1(2) sets out two standards for judging whether
provision is reasonable. There is the spouse standard whereby the
court is asked to assess such financial provision as would be
reasonable in all the circumstances. This has been considered
analogous to provision that would be made if the spouses had
been divorcing at the time of the death of the deceased—see the
guidelines laid down in Re Besterman (1984), applied in Re Bunning
(1984). The court would take account of the fact that Romeo and
Diana had lived apart for 20 years and take account of how Diana
had maintained herself throughout that period. Had she, for
example, received any funds from Romeo or has Romeo been able
to build up his substantial capital because he has failed to make
provision over the years for Diana?
The test is an objective one, that is to say, what the court
considers reasonable in the circumstances and not what the
deceased thought was reasonable.
In the case of the other potential applicants, the maintenance
standard is applied. In the case of the children, clearly their ages
would be taken into account, their state of health, employment
and or education. Dicta in the Court of Appeal decision in Re
Coventry (1979) indicates that the children do not have a claim to
maintenance as of right. Rather, one would have to establish, for
example, a moral claim. This would be easier in the case of the
youngest child aged nine in considering the child’s future
education and dependence upon his semi-paralysed mother Juliet.
In the case of the children aged 22 and 18 respectively, their chances
of an award would depend again upon the stage they had reached
in their education and future prospects and any special moral
obligations owed to them by the deceased as against the
considerable size of the net estate.
In the case of Juliet, the criterion would be one of
maintenance. The court would have regard to the financial
needs and resources of Juliet, but bearing in mind her condition

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following the road accident. The question does not make it clear
whether Romeo cohabited with Juliet, although one is given that
he deserted his wife 20 years ago and the implication therefore
is that Romeo and Juliet cohabited. The death of Romeo on or
after 1 January 1996 would mean Juliet would not have to prove
prior dependence—s 2(1) of the Law Reform Succession Act
1995. The purpose of the section is to bring claims by cohabitees
closer to the rights of the spouse. Section 2(1) says that in
addition to the general matters to be taken into account under
s 3(2)(a)-(f) of the 1975 Act, the court will have regard to the age
of the applicant, the length of time the parties have lived
together and the contribution made by the applicant to the
welfare of the deceased and the contribution made in looking
after the home or caring for the family. The criterion of award
is still one of maintenance, however, in adding these factors, the
cohabitee is set apart from other dependants under category (e).
In addition to the amendment by s 2(1), in view of Juliet’s
condition, moral obligation in s 3(2)(a) will clearly be a strong
factor in considering an award in her favour. Liability for
Inheritance Tax will also be a factor in arriving at an award; see,
for example, the dictum of Carnwath J in Re Goodchild (1996).
Property passing to the surviving spouse will be exempt
Inheritance Tax, but property diverted elsewhere, in favour of
other individuals, could attract tax. Inheritance Tax is charged
on assets passing on death which are not exempt and where the
estate exceeds (currently) £234,000 in value.
If it is the case that the parties have cohabited and Juliet has
been dependent upon Romeo for that time, given that she has
borne three children by him, the court could consider making a
substantial award by way of lump sum and/or income payments
calculated in relation to Juliet’s condition following the road
accident and her likely life expectancy; see Malone v Harrison.
Orders made would include the provision of a home for Juliet
and the child or children who are currently with her, together with
possible provision for Diana and the children themselves given
the considerable size of the estate.

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Question 23

Bill, a successful actor, died in May, survived by his wife Alice, his
former wife Betty, who is an invalid aged 53, and his unmarried
son Charles, aged 25. In the 10 years before his death, unknown to
his family, Bill had been having an affair with Doris, an actress in
the same company.
Five years ago, Bill inherited some money which he used to
buy a country cottage. In order that Doris should have some
financial security, the cottage was conveyed into the joint names
of Bill and Doris. Bill also covenanted to pay £30,000, but the sum
had not been paid. The estate at death was worth £300,000. Bill
left £10,000 each to Doris and Charles and the residue to a named
charity.
In September, Alice made an application for reasonable
provision under 1975 Act. Prior to the hearing of the application,
Alice and Charles were involved in a road accident in which Alice
died and Charles was seriously injured.
Advice Betty, Charles, Doris and Alice’s executors as to their
rights, if any, in Bill’s estate.

Answer plan

The question is asking you to consider the relative merits of the

parties for reasonable provision under the 1975 Act. Each
individual should be considered separately from the point of view
first, of locus standi, secondly, whether reasonable provision has
been made, and, thirdly, the particular factors one would consider
as regards each individual applicant. This question has the
interesting twist of the death of an applicant prior to the hearing
of the case.

Answer

One has to consider the rights of application to the court and the
merits of their respective cases under the 1975 Inheritance Act in
respect of all those who survive Bill. This is on the basis that Bill
died domiciled in England and Wales.

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Q & A ON SUCCESSION

Alice, as the surviving spouse, clearly has locus standi under s

1(1)(a). However, Alice has died prior to the hearing of her
application. In Whyte v Ticehurst (1986), the court held that in
circumstances where an applicant dies before the hearing of the
application, the right to apply for reasonable provision under the
1975 Act is a personal right and not a right which survived for the
benefit of the estate under the Law Reform (Miscellaneous
Provisions) Act 1934. Therefore, despite the merit of Alice’s claim
as spouse and the fact that she was not left any property under
the will, her estate would have no right to continue the application.
Betty has locus standi to apply under sub-para (b) of the Act
provided she has not remarried. The criterion in determining
whether reasonable financial provision has been made for her is
one of maintenance, s 1(2)(b). However, if Bill and Betty reached a
financial settlement at the time of the divorce, then Betty could be
barred from applying under the Act. Re Fullard (1982) and, more
recently, Barrass v Harding (2000) envisaged that claims by former
spouses under the Inheritance Act would be relatively few. The
reason is that the court now has much wider powers on divorce
to make lump sum orders and appropriate capital adjustments.
This does not necessarily rule out applications. The death may
unlock assets which, during life, had limited realisable value, for
example, insurance policies, or Betty may not pursue the rights to
maintenance which she should have been awarded. For example,
in Re W (1975), the former husband was able to build up the capital
in his estate because his former wife had not pursued the question
of maintenance at the time of the divorce owing to her ‘gentle and
compliant nature’.
Charles would have locus standi to apply under sub-para (c) as
a child of the deceased. There is no age limit, so the fact that Charles
is adult would not prevent his right to apply and he would have
six months from the date of the grant to the estate in order to
lodge an application. Wherever one considers the right of the adult
child, one has to bear in mind the dicta of the court at first instance
and of the Court of Appeal in Re Coventry (1979). Re Coventry and
the later cases of Re Abram (1996) and Re Pearce (1998) make it
clear that merely establishing oneself as the child of the deceased
does not in itself merit an award being made. One has to establish
some other additional factor or factors: for example, moral
obligation or some physical or mental disability. Here, Charles
has been considered by the legacy of £10,000 under the will.

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However, since the death, Charles has been seriously injured in

the accident.
The test as to whether reasonable provision has been made for
an applicant is an objective test (s 3) and the time to consider this
is the date of the hearing. If the court decides reasonable provision
has not been made, account can be taken of supervening events.
For example, in Re Goodwin (1968), after the death of the deceased
it became clear a debt owed to the estate would not be repaid.
In addition, considering Charles’s financial position and the
financial position of the other applicants and beneficiaries in the
estate, the court will take account of the injuries Charles has
suffered and the likelihood as to whether he could resume a normal
life and the extent to which his earning capacity has been affected.
The criterion by which an award would be considered is one of
maintenance and if Charles is to be disabled for life, then some
contingency would be built into the award to take account, for
example, of the erosion of investment income through inflation.
Doris could have locus standi to apply if she could establish that
she was dependant upon Bill immediately before his death.
She would have to show that Bill was making a substantial
contribution towards her maintenance in monies worth. Here, the
provision of the cottage and the covenant will be relevant. The
criterion upon which the award is based is again one of
maintenance, and regard to Doris’s financial position and whether,
for example, Bill encouraged Doris to adopt a particular lifestyle.
One would need to know whether the cottage was held in their
joint names, in which case, the title would pass to Doris by right
of survivorship. However, this could mean that the court could
order Bill’s share to form part of the net estate available for an
award under the Act; see s 9 and for an application of s 9, Jessop v
Jessop (1992). The fact of the covenant also shows an intention upon
Bill to make some financial provision for Doris. In addition, if the
covenant has actually been executed although not paid, then it is
possible that Doris could have a claim against the estate as a
creditor prior to the determination of the meaning of net estate
for the purposes of the Act. This application can be counted if it
can be shown that Bill had entered into the covenant in order to
thwart a possible application under the Act by, for example,
members of his family (s 11). Doris would have to supply details
of her financial position including the legacy of £10,000 under the
will. The court may be more sympathetic in favour of individuals

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in their claims, particularly with regard to Charles if he is

permanently disabled, where the residue is going to a charity
rather than a named individual (see, for example, the dicta in Re
Parkinson (1975)). The court has wide powers under the Act to
make income and capital orders in making provision for
maintenance.

Question 24

Consider the above facts as varied so that in the case of the road
accident, although Charles is seriously injured, Alice escapes with
mere cuts and bruises.

Answer plan

This question deals with the rights of the surviving spouse in

applications under the Inheritance legislation. The surviving
spouse can be in a stronger position regarding an application
compared with others who may have locus standi in view of the
criterion for reasonable provision being based upon the ‘divorce’
standard. Although the courts have stressed that each case depends
upon its own facts, the Court of Appeal in Re Besterman (1984) did
set down guidelines which have been followed.

Answer

Alice as indicated would have locus standi as the surviving spouse

under s 1(1)(a). The criterion in the case of an application by the
spouse is that reasonable financial provision means such financial
provision as it would be reasonable in all the circumstances of the
case for the applicant to receive, whether or not that provision is
required for the maintenance of the applicant (see s 1(1)(a)). Section
3(2) indicates that the guideline for provision for spouses is to
answer the question of what the spouse would have received if
the parties were divorcing at the time of the death. Although this
test can, in certain circumstances, be of limited assistance (see, for

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example, Winfield v Billington (1990)), the court has set down

guidelines in Re Besterman (1984).
The starting point in considering an application by the spouse
is a three point approach, considering, first, whether the spouse
has provision of a roof over her head, secondly, sufficient income
to maintain her standard of living and, thirdly, some provision for
contingencies. One would need to know what financial resources
Alice has and that there is no provision being made for her in the
will. The court would also consider the length of the marriage
and the conduct of the spouses within the marriage and the
contribution that Alice has made to the marriage (see Re Besterman
and the principles applied in Re Bunning (1984)). In Moody v
Stevenson (1992), the court said that the starting point is what a
family judge would have ordered if divorce, instead of death, had
divided the couple. The test as to financial provision for a surviving
spouse is objective, that is, the decision of the court as to whether
the disposition of the estate makes reasonable provision for the
spouse. The test is not whether the testator acted reasonably in
making the dispositions.

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 CHAPTER 7

TYPES OF GIFT,
CONSTRUCTION,
FAILURE OF GIFTS

Introduction

This chapter deals with three separate areas that have been placed
together as they are closely interrelated and questions on these
subjects often include a combination of all elements.
The types of legacy that a testator may leave in his will can
either be specific, general, demonstrative or pecuniary. A specific
gift is one which isolates a particular item or items held by the
testator. It is commonly introduced by the word ‘my’ rather than
a more general description.
Specific legacies are subject to ademption, in that if the item
does not exist in his estate at the time of the testator’s death, the
gift fails and the beneficiary neither takes anything nor is
entitled to any compensation. Problems can occur where the
items involved (commonly shares) are replaced by different
holdings during the testator’s lifetime. The test here is whether
there has been a change in substance or a change in form and
if it is merely the latter, the gift will not adeem. The cases of Re
Slater (1907) and Re Clifford (1912) should be compared and
contrasted and note should be made of the (somewhat
generous) decision in Re Dorman (1994).
General legacies (as the name implies) involve a less specific
description. There is a difference between a gift of ‘my 100
shares in X Ltd’ and a gift of ‘100 shares in X Ltd’. The former
is a specific gift, the latter general. General legacies are not
subject to ademption. If the item does not exist in the state at
death, the legacy acts as an instruction to the personal
representatives to purchase the item for the beneficiary out of
general estate assets. Alternatively the personal representatives
may use their statutory power of appropriation under s 41 of the
Administration of Estates Act 1925 or any similar power

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Q & A ON SUCCESSION

expressly given by the will. As they are not subject to ademption

the courts tend to lean in favour of finding a legacy to be general
rather than specific as in Re Gage (1943).
Demonstrative legacies are gifts expressed to be paid out of a
specified fund—for example, ‘£100 from my current account at X
Bank’. Demonstrative legacies are general in nature so even if the
fund does not exist, they will still not adeem and the personal
representatives will have to provide for the gift from general estate
assets. To the extent that the fund does exist demonstrative legacies
are counted as specific legacies for abatement purposes (see
Chapter 8 below).
Pecuniary legacies are gifts of money and can be either specific,
general or demonstrative according to the wording used in drafting
the legacy.
In addition to gifts made by will, the deceased may have made
an inter vivos gift in the form of a donatio mortis causa. In Sen v
Headley (1991), the court found that there were three requirements
for such gifts to be valid:

• the gift must be made in contemplation of impending death;

• the gift must be conditional on the donor’s death but revocable
until that time;
• there must be a delivery of the subject matter of the gift or
some means of control over the subject matter.

Sen v Headley (1991) also confirmed that most property (including

land) can be the subject of a valid donatio mortis causa.
There are general and specific rules that the courts use for the
purpose of construing the provisions of a will. The general rules
are in reality more like guidelines as the judges strive to ascertain
the testator’s intended meaning as expressed by the words in the
will. One of the major principles is that words should be given
their ordinary, technical meaning unless it becomes apparent that
the testator has given the words a secondary meaning. In these
circumstances, the court will accept extrinsic evidence under the
‘armchair’ principle as stated in Boyes v Cook (1880). A classic
example of this is Thorn v Dickens (1906), where the testator used
the word ‘mother’ to mean ‘wife’.

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The general construction rules were extended by s 21 of the

Administration of Justice Act 1982. Under the terms of the Act,
the court is allowed to use any form of extrinsic evidence in so
far as:

• any part of the will is meaningless; or

• the language used in the will is ambiguous; or
• evidence shows that the language used is ambiguous in the
light of surrounding circumstances.

An interesting application of the rules of construction and the rules

for rectification of a will can be found in Re Williams (1985).
Specific rules of construction include rules for inconsistent
clauses (the latter clause prevailing as a rule of last resort), the
eiusdem generis rule, the class closing rules and s 22 of the
Administration of Justice Act 1982 (which attempts to prevent the
unintended creation of life interests). A further rule is s 24 of the
Wills Act 1837, in that a will speaks from death as to property in
an estate unless there is a contrary intention. This rule has difficult
implications in relation to the ademption of specific legacies, as
shown in Re Gibson (1866), Re Edwards (1890), Re Willis (1911) and
Re Sikes (1927).
Gifts may fail for many reasons. They may fail by ademption,
by lapse (where the beneficiary predeceases the testator—though
in certain cases, the gift will be saved by the operation of s 33 of
the Wills Act as amended), by divorce or by s 15 of the Wills Act
1837—the witness/beneficiary rules. Two causes of failure,
however, need particular mention—the commorientes rule and the
forfeiture rule.
The commorientes rule is contained in s 184 of the Law of Property
Act 1925 and under its provisions in cases of uncertainty as to the
order of death, it is presumed to have occurred in order of seniority,
the youngest being deemed to survive. The question of when the
order of death can be said to be uncertain has troubled the court
and the House of Lords’ decision in Hickman v Peacey (1945) merits
close attention, in particular for the complete disparity of views
held by the majority and minority judges.
The forfeiture rule is a common law rule of public policy
whereby any person who kills another cannot benefit from that
other’s will or intestacy. The rule applies to murder and, after some
hesitation by the courts, to all forms of manslaughter—Jones v

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Q & A ON SUCCESSION

Roberts (1995). The provisions of the Forfeiture Act 1982 allow the
court to modify (or, it seems, completely exclude) the effect of this
rule. They cannot do so in cases of murder, but for other cases,
they should have regard to the conduct of the offender and of the
deceased and all other relevant circumstances. A good example of
the application of this rule can be found in Re K (1985) and Dunbar
v Plant (1997).

Question 25

Alice, a widow, and her daughter Meg, both died when the car,
driven by Meg, crashed.
Alice’s will reads as follows:

• ‘I appoint one of my brothers to be my executor.’ There was

added below in pencil ‘either Ned or George’.

Alice has three brothers who survive her—Ned, George and Jack.

• ‘£3,000 to my sister.’ There is a line through the figure and £5,000

has been written above in ink. Alice is survived by her two
sisters.
• ‘My 2,000 shares in British Gas plc to my dear Jack.’ At the date
of the will, Alice had exactly 2,000 shares. Subsequently, Alice
sold 500 shares; however, shortly before her death, Alice
received 200 shares in a rights issue.
• ‘My house “The Gables”, its contents, and my other effects to
Meg provided she does not pre-decease me or our deaths
coincide, if so, then to (a named) charity.’

Meg is survived by her illegitimate son, Philip.

Advise Ned upon the appointments and dispositions contained
in the will.

Answer plan

The way to approach a mixed construction question of this nature

is to take each clause of the wills separately in advising Ned. There

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is no clear cut answer in each case; instead, the purpose is to elicit

and demonstrate the issues and potential difficulties. Principal
points to be considered in this question are an understanding of
the application of s 21 of the Administration of Justice Act 1982 on
the admission of extrinsic evidence; an understanding of the
distinction between the different types of legacy, in particular the
definition of specific legacies; a possible application of s 184 of the
Law of Property Act 1925 and the approach of the court to the
interpretation of the wording in clause 4 as to ‘my other effects’.

Answer

The first point to consider is who would administer the estate on

behalf of Alice. The express appointment in clause 1 is patently
ambiguous, that is to say that it is ambiguous on the face of the
instrument. Prior to 1983, it was not possible to admit extrinsic
evidence to resolve a patent ambiguity, save in the exceptional
case of Doe d Cord v Needs (1836). However, by s 21(1)(b) of the
Administration of Justice Act 1982, the court will admit extrinsic
evidence in so far as the language used in any part of the will is
ambiguous on the face of the will. Evidence would have to be
sought, therefore, of any statements made by Alice which showed
that she preferred one brother against another. Would the court
take account of the word in pencil? Where a will is written in ink
or type-written, and words in pencil are included, then there is an
evidential presumption that the words in pencil are merely
deliberative (see in the goods of Adams (1872)). The words may be
testamentary, but there would have to be clear proof that they
were written prior to execution by the testatrix. Evidence could
be adduced by the witnesses by affidavit of due execution (see r
12 of the Non-Contentious Probate Rules 1987), in order to establish
whether the interlineation was written prior to execution. If there
is no clear proof, one is up against the presumption that any
alterations or interlineations are made not only after execution of
the will but after the execution of any codicils (s 21 of the Wills
Act 1837). If it cannot be proved that the words are testamentary,
there is still the possibility, if it can be established that the writing
matches the handwriting of Alice, that the words could be
admissible as extrinsic evidence to at least eliminate Jack as a

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possible executor. Even if that was the case, one would still need
evidence to distinguish between the choice of either Ned or George.
In the absence of extrinsic evidence to resolve the ambiguity, the
appointment of the executor would fail. It is not as if the court
could, say, appoint Ned and George because the will says ‘I appoint
one of my brothers to be my executor’.
The legacy of £3,000 to ‘my sister’ is an example of a latent
ambiguity. Extrinsic evidence was admissible prior to 1983
where the gift was not ambiguous on the face of the instrument
(see, for example, Re Jackson (1933)). 1 The admissibility of
extrinsic evidence where the ambiguity is latent is now
encompassed in s 21(1)(c) of the 1982 Act. The extrinsic evidence
which is admissible may be direct, that is, statements made by
the testator including statements as to his or her intention,
together with circumstantial extrinsic evidence, for example,
which sister Alice favoured.2 Assuming the evidence can resolve
the identity of the sister, what is the value of the legacy which
the sister could take? The alteration involves an application of
s 21 of the Wills Act 1837. If the alteration is not attested in
accordance with s 9 of the Wills Act, then the new amount
cannot take effect and one would look to see whether the former
amount is ‘apparent on the face of the instrument’. Here, since
there is simply a line through the original figure, one could
presumably see what was there before and, assuming the
identity of the beneficiary is resolved, the sister would take
£3,000.
In the case of the bequest in clause 3, one has to identify what
type of legacy is represented by the gift of the shares. If the
legacy is specific, that is to say, Alice has identified those
particular 2,000 shares in British Gas plc, then the risk is the
application of the doctrine of ademption. A specific gift is one
which refers to the testator’s asset in such a way as to
distinguish it from the other assets in the estate and indicate that
the asset is to pass to the legatee in specie; see the dictum of Jessel
MR in Bothamley v Sherson (1875). Is the gift a specific legacy?
The inclusion of the possessive word ‘my’ in describing the
shares points towards a specific legacy. Also, the fact that at the
date of the will Alice owned exactly 2,000 shares in British Gas
plc. However, the courts are reluctant to hold as a specific legacy
the gift of shares which are subject to fluctuation and have
indicated that the mere fact that Alice owns the exact number of

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shares at the date of the will is not conclusive. It is said that the
court leans against construing legacies as specific (see Re Rose
(1949)). This reluctance is due to the effect of the doctrine of
ademption so that here, if the gift is held to be specific, the sale
of the 500 shares would cause a partial ademption and the 200
shares received in the rights issue could be construed as
completely new shares which would not be included in the gift
(see Re Kuypers (1925)). The difference here as against Re
Kuypers3 is that the shares do not appear to have changed in
class and one could therefore possibly argue that the 200 shares
are identical to the other shares and, in the absence of contrary
intention, applying s 24 of the Wills Act 1837, which construes
gifts of property in wills as applying to their description at the
date of death, one could argue that the 200 shares could be
included; therefore, the beneficiary would receive 1,700 shares.
The problem is if the intention is to regard the 2,000 shares
specifically as those 2,000 shares then the 200 shares would be
considered additional and not part of the gift. The distinction
between specific legacy and general legacy is one of intention.
One could argue here that if Alice sold 500 shares by the time
the will was executed, this could indicate a general intention to
give 2,000 shares to the beneficiary in any event. This would
point towards construction as a general legacy. Where, however,
the legacy is construed as specific and ademption occurs, then
the doctrine of ademption applies independently of the
testator’s intention. One looks then at the change of form of the
asset and the key is whether the asset can be traced. In Re Slater
(1907),4 Cozens-Hardy MR said in relation to the test ‘where is
the thing which is given? If you cannot find it at the testator’s
death, it is no use trying to trace it unless you can trace it in this
sense, you will find something which has been changed in name
and form only, but which is substantially the same thing’. In Re
Dorman (1994), the court held that a gift of ‘the balance of my
Barclay’s Higher Deposit account number 10327719’ was not
adeemed when the account was changed to a ‘capital advantage
account’ with a different number. This illustrates the general
disinclination of the courts to find that there is a change in
substance. If the gift is construed to be a general bequest, then
the beneficiary will take the shares answering the description
which are held by the estate at death, here 1,700, and the balance
is construed as a direction upon the personal representatives to

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either require the remaining shares or give the beneficiary the

equivalent in money.
To whom are the shares given? Is Jack Alice’s brother or someone
else answering the description? One would look at the
circumstances surrounding the will at the date of death and then
if there is some doubt, apply the ‘armchair rule’ where one looks
at the circumstances as Alice saw them at the date the will was
executed (see, for example, Charter v Charter (1874)).5
Clause 4 is the devise of the house together with the
constructional issue as to the extent of the remainder of the gift.
Who is entitled to the gift? If there is any direct evidence as to the
order of deaths between Alice and Meg then this will apply. So if
the evidence shows that Meg predeceased Alice even by seconds,
then the property would pass to the charity. If, on the other hand,
the evidence shows that Meg survived Alice, then the property
will pass according to Meg’s will or intestacy and it is possible
then that her son Philip could be a beneficiary. He would not be
prevented from taking merely because he is illegitimate, since the
Family Law Reform Act 1987 removes illegitimacy as a bar in any
succession to property. If there is no clear evidence as to who has
survived then the question arises whether the statutory
presumption in s 184 of the Law Property Act 1925 should be
applied. What is the effect of the proviso, in particular, the words
‘or our deaths coincide’? In Re Rowland (1962), the Court of Appeal,
by a majority, held that the word coincide means no more and no
less than dying at the same time. Since one could not prove that
the parties died at exactly the same time, the court rules that the
statutory presumption should be applied. If this is the case, then
Meg, the younger, would be presumed to have survived Alice and
again it could be possible that Philip could share depending upon
Meg’s will or intestacy. In a dissenting judgment in Re Rowland,
Lord Denning argued that one should ask what the words meant
to the particular testator and he construed the use of the word
coincide as meaning death occurring in a common accident where
both Dr and Mrs Rowland perished. He cited the support of the
House of Lords Perrin v Morgan (1943), but the majority of the
court in Re Rowland could also cite Perrin v Morgan when saying
that one interprets a will by considering the meaning of the written
word which the testator used in a particular case. In Re Rowland,
the majority construed the word ‘coinciding’ in its strict sense of
simultaneous. Therefore, on the authority of Re Rowland, the

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statutory presumption would apply and the property would pass

to Meg’s estate.
The will does not appear to include a general residuary bequest.
The only doubt is in the construction in clause 4 in the words ‘my
other effects’. Are these words to be confined within the context
of ‘The Gables’ and its contents or could one put a broader
construction upon the words ‘my other effects’ to mean the residue
of the estate? One would look at the words used in the context of
the will to try to determine Alice’s intention adopting the approach
of Viscount Simon LC in Perrin v Morgan when he said ‘the question
is not, of course, what the testator meant to do when he made his
will, but what the written words he used mean in the particular
case…what are the “expressed intentions” of the testator’. If the
court adopts a narrow construction in confining effects to personal
effects in the house then there would be partial intestacy in view
of the failure to make a general residuary gift.

Notes

1 In Re Jackson (1933), the testatrix left property to ‘my nephew

Arthur Murphy’. When the will was placed in context at death
it was discovered that there were three nephews all called
Arthur Murphy. All three were known to the testatrix at the
date she executed the will. Two of the nephews were legitimate
and the third illegitimate. (If, as the law stood at that time,
there had only been one legitimate nephew called Arthur
Murphy, there would have been no equivocation because the
law would have only recognised the legitimate nephew.)
Because there were two legitimate nephews called Arthur
Murphy revealed by the surrounding circumstances, this
created a latent ambiguity and extrinsic evidence was admitted
which revealed that the testatrix intended the illegitimate
nephew to benefit.
2 Suppose that in the case of the two sisters referred to in clause
2, one of them was the natural sister to Alice and the other a
stepsister. Then there would have been no ambiguity because,
prima facie, the court would have construed the reference to
sister as meaning the blood sister, since relationships are
construed strictly; therefore, in saying ‘£3,000 to my sister’,

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there would be no ambiguity. Therefore, the court would not

admit extrinsic evidence even though Alice really intended
the stepsister to benefit. In NSPCC v SNSPCC (1915), the
testatrix left property to numerous Scottish charities. In a final
codicil, she left a legacy to the National Society for the
Prevention of Cruelty to Children. The gift was challenged by
the Scottish National Society for the Prevention of Cruelty to
Children on the basis that all the testatrix’s associations were
Scottish and that her intention was almost certainly to benefit
the Scottish Society. However, in making the gift, she had
accurately described the NSPCC, the English National Charity,
and therefore the gift was not ambiguous and as a result,
extrinsic evidence could not be admitted.
3 In Re Kuypers (1925), the testatrix made a specific request of
600 15% cumulative preferred ordinary shares of £1 each in a
company. Subsequently, by virtue of special resolutions of the
shareholders of the company, these shares were consolidated
with certain other preference shares and were allotted to the
holders of the 15% preference shares as shares in one class of
8% cumulative preference shares of £1 each. In place of her
600 15% preference shares, the testatrix received £1,200 of the
new 8% preference shares. The court held that the specific
legacy should relate to the 600 8% preference shares, as these
were traced as the actual shares referred to in the will. The
court said they remained the same shares with a continuous
history since before the will was made. On the other hand, the
additional shares were held to be wholly new shares subscribed
and paid for out of the reserve fund. These new shares were
in the form of a compensation for a variation of the class rights
and could not be treated as coming within the description of
the original gift.
4 In Re Slater (1907), there was a gift of stock in the Lambeth
Water Works. After the date of the will, the stock was taken
over by the Metropolitan Water Board and Metropolitan stock
was given in lieu. The question arose as to whether this new
stock passed under the bequest or whether there been
ademption. The court held the gift was in fact not specific, but
general. However, in construing the terms of the statute
pursuant to which the shares had been taken over the court
concluded that the Metropolitan Water Board stock was
entirely new and the Lambeth stock had disappeared;

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therefore, there was nothing on which to fasten a value for the

personal representatives to give the beneficiaries. There had
therefore been an extinction of the interest and the bequest
could not take effect.
5 In Charter v Charter (1874), the testator left property by will to
‘my son Forster Charter’. Following the death of the testator,
it was discovered that his son Forster had died some years
before the will was executed. Two other sons had survived
the testator, William Forster Charter and Charles Charter.
William claimed the property on the basis that his middle name
was ‘Forster’. However, the court applied the ‘armchair rule’
whereby they looked at the situation as at the date of the will,
that is, looking at the situation as the testator saw it. The
admission of evidence under the ‘armchair rule’ revealed that
William rarely saw his father, but Charles lived with his father
and his father was in the habit of frequently calling Charles
‘Forster’; therefore, Charles Charter was able to take the
property.

Question 26

Was Lord Atkin being optimistic in his observation on the

construction of wills when, in Perrin v Morgan (1943), he anticipated
‘with satisfaction that henceforth the group of hosts of dissatisfied
testators who, according to a late Chancery judge, wait on the
other bank of the Styx to receive the judicial personages who have
misconstrued their wills maybe considerably diminished’ [1943]
AC 399, p 415 (House of Lords).

Answer plan

This quote is asking you to consider the judicial attitude towards

the construction of wills. Is the approach today more liberal than
it was, say, at the turn of the century? Where a will is unclear as to
its meaning matter may be referred to the Chancery Division as a
court of construction. The Chancery Division of the 19th century
and the early part of the 20th century took a strict line on the
grammatical meaning of words, then gave a short shrift to, albeit

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well meaning testators, where the court considered the words used
in the will were unclear. The quote requires consideration through
the cases as to whether the courts today are prepared to adopt a
more flexible approach. Certainly, this approach is encouraged in
the wording of the judgments in Perrin v Morgan itself. In addition,
one has the more flexible approach to the admission of extrinsic
evidence now contained in s 21 of the Administration of Justice
Act 1982 and the statutory power to rectify wills contained in s 20
of the 1982 Act.
The way to approach this question is to illustrate through the
cases the approach of the courts in the construction of wills.

Answer

The optimism of the Lord Atkin in Perrin v Morgan (1943) stems

from what was perceived to be a more liberal view of the
interpretation of wills. Perrin v Morgan itself was concerned with
the interpretation of the word ‘moneys’. The word money has
changed in meaning over the centuries as society developed more
sophisticated banking procedures and forms of investment. Where
one is considering the interpretation of a word which has shifted
in meaning then the word and the context in the will are considered
at the time the will was made. In an often quoted extract from the
judgment, Lord Simon said:

…fundamental rule in construing the language of a will is to put on

the words used the meaning which, having regard to the terms of the
will, the testator intended. The question is not, of course, what the
testator meant to do when he made his will, but what the written words
he uses mean in the particular case. What are the ‘expressed intentions’
of the testator?

These words are frequently quoted as evidence of a more liberal

approach in the construction of wills. Lord Simon then went on to
refuse to place any cast iron meaning on the word money, but
went on to consider the way the meaning of the word has changed
over the years.
How do the courts go about construing the meaning of the
testator’s will? It will become effective on the death of the

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testator. The first step is to read the will and consider whether
it is clearly expressed. One places the will in the context of the
surrounding circumstances at the death of the testator. This is
essential in order to determine the extent of the estate and
whether particular references to property and persons
correspond with the property and persons at the death of the
testator. It must be borne in mind that the function of the court
is to interpret the words which the testator used and not attempt
to make the will itself. This approach is implicit in the above
quote from the judgment of Lord Simon. The court can only
interpret the testator’s intention as expressed in the will and it
is not the court’s function as Jenkins LJ said in Re Bailey (1951)
‘to improve upon or perfect testamentary dispositions’. The will
must be read as a whole. Words are given their ordinary
grammatical meaning unless the context of the will indicates
otherwise. If the testator uses words which are clear and
unambiguous, effect must be given to them however capricious
they may appear to be. The testator is at liberty to adopt his own
eccentricity and it may be that this could only be challenged on
the basis that this may be prima facie evidence that the testator
lacked capacity at the time he made the will or those persons
who feel unjustly served by the will could consider an
application under the Family Provision legislation.
If, by reading the will as a whole and placing it in the context
at death, doubt arises as to the meaning of words then the court
will adopt the so called ‘armchair rule’. This entails attempting
to look at the will in the context and through the eyes of the
testator as he saw the will when it was made. Thorn v Dickens
(1906), a case which is recorded as the shortest litigated will, is
an example of this approach. The will said simply ‘all to
mother’. Evidence of the circumstances at the testator’s death
showed that the testator was well aware that his mother was
dead when he made the will. This raised the question of what
he meant. In looking at the context at the time the will was
made, it became clear that in referring to ‘mother’, he was in fact
referring to his wife.
If equivocation is revealed in the context, in the form of a latent
ambiguity, or indeed where the gift is ambiguous on the face of it,
then the court is permitted to admit extrinsic evidence, including
evidence of the testator’s intention, in order to resolve the
ambiguity.

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The court will approach a clause by looking at it in the

context of the will as a whole. The approach is to deduce the
intention of the testator from the will itself. To assist it, the court
adopts ‘rules of construction’, that is, rules of convenience in
assisting the courts to arrive at a solution to the meaning of a
gift. It is emphasised that the court will not attempt to write the
will for the testator so where the words used are clear then,
subject to the limited power of rectification in s 20 of the
Administration of Justice Act 1982, the court will give effect to
the words used even though it is likely that that is not what the
testator intended, see for example Scale v Rawlins (1892)1 and
NSPCC v SNSPCC (1915). In the NSPCC case, the testatrix gave
various legacies to Scottish charities. Included among these was
a legacy to the National Society for the Prevention of Cruelty to
Children, that is, the name of the English charity. The gift was
challenged on the basis that the testatrix had lived all her life in
Scotland and all her associations were with Scotland. However,
she had accurately described the English society; therefore,
effect was given to that gift.2 The court can interpret words in
their strict sense, therefore resulting in a narrower construction
to a provision than was perhaps was intended by the testator,
for example, in the approach by the majority o5f the Court of
Appeal in Re Rowland (1963).3
The basic approach is that a word is given its ordinary
grammatical meaning. This is to safeguard against wills
becoming too general in expression. Where a word is used
whose meaning has altered over the years then the meaning
which is to be contributed is the meaning applicable at the date
the will was made, as in the construction of the word money in
Perrin v Morgan. The testator may however indicate a secondary
meaning to a word. Exceptionally the will contains a definition
clause. Alternatively when the will becomes effective, on the
death of the testator, and is placed in the surrounding
circumstances these circumstances may indicate a secondary
meaning. Re Davidson (1949) is an example whereby the context
of the will showed that the testator had applied a secondary
meaning 4 as is Re Smalley (1929), where the testator left his
property to ‘my wife Eliza Ann Smalley’. His lawful wife was
called Mary Smalley, but surrounding circumstances showed
that the testator lived with a woman called Eliza Ann. The court

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concluded that the testator had used the word wife in the
secondary sense, meaning common law wife.
A secondary meaning may emerge when the court applies the
‘armchair rule’ first described by James LJ in Boyes v Cook (1880)
when he said ‘You may place yourself, so to speak, in the testator’s
armchair and consider the circumstances by which he was
surrounded when he made his will’. So, in Thorn v Dickens, referred
to above, application of the armchair rule showed that the testator
intended his wife to have the property and in Charter v Charter
(1874), it indicated that the testator intended his son Charles
Charter to benefit.
Words may have more than one meaning. Perrin v Morgan is a
good example of the approach that the court will adopt the most
probable meaning in the circumstances. Lord Simon said that it
was a mistake to pick out one interpretation of a word and call it
the ‘legal meaning’. In Perrin v Morgan, the House of Lords held
that in the will form made by the testatrix without legal assistance,
the phrase ‘all monies of which I died possessed’ was intended to
give the whole of the net personal estate.5
Where a testator uses a word or phrase which has required a
technical (legal or scientific) meaning, then there is a strong
presumption that the words will carry the technical meaning.
This presents a danger particularly where the testator writes out
the will without legal assistance and includes words which,
unappreciated by the testator, carry a strict technical meaning.
One has to distinguish between technical words and phrases
and words which merely convey description, for example, ‘male
issue’ is a technical phrase meaning the male descendants in the
male line, whereas the phrase ‘male descendants’ is not a term
of art, but a descriptive phrase meaning males descended
through both the male and female line; see Re Drake’s WT (1969).
The dangers in Perrin in using legal phraseology are well
illustrated in Re Cook (1948), where the testatrix, in a homemade
will, gave ‘all my personal estate whatsoever’ to her nephew
and nieces. The bulk of the estate consisted of realty and the
court held that this had not been disposed by the phrase;
therefore, the bulk of the estate passed on intestacy.6
‘Next of kin’ is not a technical phrase. It has been construed as
the nearest blood relations, but one would look at the context in
which the phrase is used, so, for example, if the will referred to

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the next of kin who would benefit on an intestacy, this would be

construed as the statutory next of kin.
The testator may use special words or symbols which have a
meaning only within his locality, trade, or business. In Kell v
Charmer (1856), the testator, a jeweller, had indicated an amount
of certain legacies in the form of a jeweller’s code which could
be interpreted by fellow jewellers. However, if the code is one
known only to the testator then, in the absence of evidence of
incorporation by reference, the gift would fail; see Clayton v Lord
Nugent (1844).7
The meaning of a particular word or phrase may be resolved
by admission of evidence of custom within a particular trade or
group of persons which included the testator. Kell v Charmer is
an example of a customary use of codes in the jeweller’s trade.
In Shore v Wilson (1842), the testator was a member of a
dissenting religious sect and the term ‘godly persons’ was
interpreted with reference to a meaning current among
members of the sect.
The courts have always maintained that they will not attempt
to write a will for the testator. However, prior to the passing of
the Administration of Justice Act 1982, there were two
circumstances where the court would alter a will in the absence
of fraud. The court omits words included by inadvertence or
mistake if the omission would give affect to the testator’s
intention as in Re Morris Dec’d (1971). Alternatively, the court
could in certain circumstances supply words to give the
meaning to a clause where this would with certainty carry out
the testator’s intention.
In Re Whitrick (1957), the testatrix by her will left all her
property to her husband but added ‘in the event of my husband
…and myself both dying at the same time’, then the estate was
to be held for certain named persons. The husband predeceased
the testatrix, leaving a will in similar terms so that the testatrix
inherited the whole estate. The question arose upon her death
as to [Link] trust would take effect. The Court of Appeal
held that the testatrix had not expressed the whole contingency
which she really intended and was prepared to add the proviso
that the gift should take effect if the husband predeceased her.
The court in Re Whitrick was not rectifying the will, rather, the
court was adding words to overcome a defect.
By s 20 of the Administration of Justice Act 1982, the court has

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power to rectify a will in two alternative circumstances. First,

where the will fails to carry out the testator’s intention as a result
of a clerical error, for example, where £50 is written instead of
£500 or the name of X is erroneously inserted instead of Y (for an
example of rectification as a result of a clerical error, see
Wordingham v Royal Exchange Trust (1992)). Secondly, where the
testator and the transcriber are at cross-purposes so that the
transcriber is mistaken as to the true intentions of the testator.
Section 20 would cover the situation which arose in Re Morris, but
it is to be emphasised that the statutory power to rectify is confined
to these two circumstances and therefore the principle in Re
Whitrick is still relevant. Also, where the wronged beneficiary
cannot recover under s 20, there is the possibility of an action for
negligence against the draftsman under the principle in Ross v
Caunters (1980).
The optimism expressed by Lord Simon has been given an
added boost by the statutory revision of the powers to admit the
extrinsic evidence now contained in s 21 of the Administration
of Justice Act 1982. The armchair rule allows the court to admit
facts which were known to the testator at the time he made the
will. The application of this rule allows the court to admit
evidence to illustrate that the testator intended a secondary
meaning to a particular word or description as, for example, in
Re Fish (1894).8 Section 21 allows extrinsic evidence in so far as
any part of the will is meaningless (s 21(1)(a)). This would cover,
for example, situations such as Kell v Charmer where, at first
glance, the code was meaningless, and would now enable
evidence to be admitted in a situation such as Clayton v Lord
Nugent. However, it is doubtful whether the court would allow
extrinsic evidence where the testator had left a gift in blank.
Sub-paragraphs (b) and (c) to s 21(1) allow the admission of
extrinsic evidence in so far as the language used in any part of
the will is ambiguous on the face of the will (para (b)) or in so
far as evidence, other than evidence of the testator’s intention,
shows that the language used in any part of the will is
ambiguous in the light of the surrounding circumstances (para
(c)). These two subparagraphs represent a widening of the
former Wigram rules on the admission of extrinsic evidence.
Under the Wigram rules, an ambiguity could be revealed by
evidence of the material facts and cured by extrinsic evidence,
as, for example, in Re Jackson (1933).9

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The effect of sub-para (b) is to admit extrinsic evidence to

resolve the gift which is clearly ambiguous on the face of the
will. This is the extension to the admission of evidence for, prior
to the 1982 Act, such words would have to be construed upon
the face of the will without the admission of extrinsic evidence
and the gift would fail. Sub-paragraph (c) takes the admission
of extrinsic evidence further in the case of latent ambiguities by
allowing the admission of circumstantial extrinsic evidence, that
is to say, evidence other than evidence of the testator’s intention,
to reveal the ambiguity. How far the courts will be prepared to
go in admitting evidence in construing the will, will depend
upon whether they adopt a narrow interpretation to s 21 or a
wider interpretation. Does the extension by paras (b) and (c)
mean that ‘ambiguous’ will be construed as possibly having
more than one meaning objectively or subjectively? One cannot
admit extrinsic evidence of the testator’s intention in order to
create the ambiguity. For example, if there had only been one
legitimate nephew in Re Jackson, that nephew would have taken
as there would have been no ambiguity. Whether the extension
of the rules on the admission of extrinsic evidence, particularly
by sub-para (c), alter the NSPCC case is debatable. By accurately
describing the English charity, there was no ambiguity. The
material fact was that there was a charity answering the
description given in the will. However, the purpose of the
extension in para (c) is to use extrinsic evidence to make the
disposition mean something other than it naturally appears to
mean. Therefore, one could argue that by placing the gift in the
context of the surrounding circumstances, the fact that all the
other gifts were to Scottish institutions and given the testatrix’s
connections, this would allow the court to adopt a subjective
meaning to ‘ambiguous’ and allow the Scottish charity to take
the gift.
As the time the legislation which became ss 20 and 21 of the
1982 Act was passing through Parliament, the then Lord
Chancellor, Lord Hailsham, recognised that the legislation
represented a codification of the rules on the admission of
extrinsic evidence. If the courts are going to construe s 21
widely, then it would appear that Lord Atkin’s optimism is well
founded.

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Notes

1 In Scale v Rawlins (1892), the testator left three houses to his

niece for life and providing she should die leaving no children,
the houses were to pass to certain nephews. The niece died
leaving children. The question arose—did they take the
property? The court ruled no; although this was probably the
intention of the testator, the will did not say so, therefore, the
houses passed to the nephews.
Note that if one could establish today that the drafting of the
will was the result of a misunderstanding between the testator
and the draftsman, it is possible that application could be
lodged for rectification of the will.
2 The description was not ambiguous. Whether this approach
would be different in the light of s 21(1)(c) of the 1982 Act is
debatable (see above).
3 The majority of the Court of Appeal in Re Rowland interpreted
the word ‘coinciding’ in its strict sense of simultaneous. Since
it could not be proved the doctor and Mrs Rowland had died
simultaneously, the contingency did not take effect; therefore,
the majority applied the statutory presumption as to
survivorship in s 184 of the Law of Property Act 1925. Lord
Denning, in his dissenting judgment, argued that one should
construe ‘coinciding’ in a wider sense looking at what Dr
Rowland intended when he wrote the provision. Although one
can sympathise with Lord Denning, the danger with this
approach is that is can lead one down the path of writing a
will for the testator. For a debate upon Lord Denning’s
approach and the way he countered criticism, see His
Lordship’s book The Discipline of the Law.
There is evidence of a greater flexibility on the part of the
judiciary by judges no longer referring to the ‘rules’ of
construction but instead making reference to ‘guides’. Lord
Denning has been the strongest critic of hard and fast rules
and his approach is typified by his dictum in Re Allsop (Dec’d)
(1968): ‘Eschewing technical rules and literal interpretation you
must look to see simply what the testator intended. If you
find that a literal interpretation gives rise to a capricious result
which you are satisfied the testator can never have intended
then you should reject that interpretation and seek for a

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sensible interpretation which does accord with his intention.’

(For a detailed consideration of the principles see The wind of
change in the law of wills’ by Professor CH Sherrin in 40 The
Conveyancer, p 66).
4 In Re Davidson, the testator had earlier in the will referred to
his named stepson as ‘my son’ and to one of the stepson’s
children as ‘my granddaughter’. The court concluded that the
testator had therefore adopted a secondary meaning to the
word ‘grandchildren’ to include not only the blood line, but
the children of the stepson.
5 Lord Simon in Perrin v Morgan said ‘in choosing between
“popular” meanings, it seems to me that an interpretation
which includes realty as well as personalty in the word
“money” may often be going too far though of course,
everything turns on the language and circumstances of the
particular will. An amateur will maker, though using the word
“money” loosely may be drawing a distinction between “my
money” and “my land”, and indeed, may mean to include
leaseholds as well as freeholds in the latter expression, if he
owns both’.
6 In Re Cook (1948), Mr Justice Harman said ‘it seems unlikely
that she intended to dispose only of the personal estate in the
lawyer’s sense of that word…but this is the case that a layman
had chosen to use a term of art. The words “all my personal
estate” are words so well known to lawyers that it must take a
very strong context to make them include real estate. Testators
can make black mean white if they make the dictionary
sufficiently clear, but the testatrix has not done so. It may well
be that she thought “personal estate” meant “all my worldly
goods”; I do not known. In the absence of something to show
that the phrase ought to be so construed, I must suppose that
she used the term “personal estate” in its ordinary meaning
as a term of art’.
7 In Clayton v Lord Nugent (1844), the donee’s in the will were
described by letters which referred to a card index system
maintained by the testator which was not incorporated by
reference. It was not possible to admit extrinsic evidence as to
the significance of the letters.
8 In Re Fish (1894), the testator bequeathed property ‘to my niece
Eliza Waterhouse’. When the will was placed in context at
death, it was discovered that the testator did not have a niece

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of that name but his wife had a great-niece called Eliza

Waterhouse. The court concluded that the testator had used
the word ‘niece’ in the wider sense; therefore, the great-niece
took the property. The armchair rule has been applied to
descriptions of property as in Ricketts v Turquand (1848), where
the testator described the property in the will as ‘my Ashford
Hall Estate’. Evidence was admitted through the use of the
armchair rule to determine what the testator meant by his
Ashford Hall Estate.
9 In Re Jackson (1933), the testatrix left property ‘to my nephew
Arthur Murphy’. When the will took effect and surrounding
circumstances were considered, it was discovered that the
testatrix had three nephews called Arthur Murphy. Two were
legitimate, the third illegitimate. As the law stood at that time,
if there had only been two nephews, one legitimate the other
illegitimate, there would have been no ambiguity for the
legitimate nephew would have taken. However, since there
were two legitimate nephews answering the description,
extrinsic evidence was admitted under the Wigram rules, which
showed that the testatrix intended the illegitimate nephew to
take the property.

Question 27
‘If a man lies in extremities…and not having the opportunity
of making his will; but lest he should die before he could make
it, he gives with his own hands his goods to his friends; this, if
he dies shall operate as a legacy.’ Per Lord Cowper in Hedges v
Hedges (1708).
Explain by reference to the case law the requirements which
must be established in order to make a valid donatio mortis causa.

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Answer plan

This essay should start by clearly setting out the requirements

which must be established to make a valid donatio and should then
expand upon the three conditions, with illustrations, from the
case law.

Answer

A donatio mortis causa is a gift made in contemplation of death.

It is considered midway between a gift inter vivos and
testamentary gift. To establish a valid donatio, three requirements
must be present: first, the gift must be made in contemplation,
although not necessarily in expectation, of impending death;
secondly, the gift is made on the condition that it is to be
absolute and perfected only on the donor’s death, revocable
until that death and ineffective if death does not take place; and,
thirdly, there must be delivery of the subject matter or sufficient
indication of title amounting to a parting with dominion over
the property and not merely a parting with possession. The gift
is conditional upon death; once the condition is satisfied it takes
effect retrospectively from the date the gift was made (see
Rigden v Vallier (1751)). It follows, therefore, that the donor must
have intended the gift to be absolute once the condition is
fulfilled (Re Beaumont (1902)).
The donor must be contemplating death in the near future
and from some reason which he believes to be impending, for
example, in Re Craven’s Estate (1937), where a donor made a gift
expressed in a general contemplation of death this did not
amount to a valid donatio. It would be a question then of
intention as to whether the donor intended the gift to take effect
as a gift inter vivos. Evidence that the donor believed that death
was impending may come from his words used, for example, ‘I
am done for’ as in Re Lillingstone (1952) or can be inferred where
the gift is made during illness and shortly before death as in
Gardner v Parker (1818).1 The donor does not have to die from the
illness causing the specific contemplation unless the gift is made
conditional upon death from that illness. In Wilkes v Allington
(1931), the donor mortgagee knew that he was dying from

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cancer and handed over the mortgage deed to relatives. He

subsequently caught a chill and died of pneumonia. The court
held that this was a valid donatio.2
Does the contemplation of death have to be reasonable? English
authorities appear to adopt a subjective approach, the belief in
the mind of the donor, rather than the objective test of
reasonableness. In Re Miller (1961), the court held that a valid donatio
was possible where a woman had a fear of flying even though it
was pointed out in the case that, statistically, air travel is safer
than driving a car.
The donor must part with dominion over the property either
by handing over the assets or the means to control. One has to
consider whether control has passed. For example, where the
donor hands over a cash box but retains the key, this would not
amount to a valid donatio (see Redell v Dobree (1839)). However,
there will be a valid donatio, even though the donor has retained a
set of keys, where in reality the donor no longer intends to use the
asset. In Woodward v Woodward (1992), the donor father was gravely
ill from cancer and gave his son the keys to his car. The son used
the car on his journeys, with his mother, to the hospital to visit the
father. A few days before his death, the father said to the son ‘You
can keep the keys, I won’t be driving it anymore’. The father had
retained a duplicate set of keys, but the court held that a valid
donatio had been made on the basis that the father intended
dominion to be transferred to the son. In Sen v Headley (1991), the
Court of Appeal, reversing the decision at first instance, held that
a gift of land by the constructive delivery of title deeds could
amount to a valid donatio. Shortly before his death, in the last stages
of a terminal illness, the donor told a friend ‘The house is yours…
You have the keys. They are in your bag, the deeds are in the steel
box’. At some stage, unbeknown to the donee, the donor had
slipped the set of keys in the donee’s handbag. The Court of Appeal
held that the intention implicit in the act resulted in the personal
representatives of the deceased holding the property as trustees
for the donee under a constructive trust.3 Caine v Moon (1896), the
authority which sets out the three requirements for a valid donatio,
is an example of constructive delivery.4 One can have delivery to
the donee’s agent as, for example, the handing over of a parcel of
stocks to a priest in Mills v Shields (1948) with instructions that in
the event of the donor’s death, the parcel was to be given to
relatives. If, however, the recipient is an employee of the donor,

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then the person is construed as agent for the donor and dominion
would not have passed (Trimmer v Danby (1856)). The evidence
must establish that the donor has handed over the means by which
possession can be obtained, for example, delivery of the only set
of keys to a box containing the subject matter as in Re Craven’s
Estate (No 1) (1937). The means to possession can take several stages
as in the handing over of the keys in Re Lillingstone (see Note 1).
To be a valid donatio, it must be clear that the gift is conditional
upon the donor’s death. If the real intention is that the gift is
immediate and absolute, then this would be construed as a gift
inter vivos and not a donatio. So, for example, an imperfect gift
cannot be saved by attempting to construe as a donatio if it was
not intended as such (Agnew v Belfast Banking (1896)). The court
will look at the circumstances at the time the gift is made, so, for
example, where property is handed over in the last days of a
donor’s final illness, the court is more likely to construe this as a
donatio rather than simply a gift inter vivos (Gardner v Parker (1818)).5
If the donor recovers, the gift is revoked. So in a situation where
property is handed over prior to an air journey where the donor
has a fear of flying, the donatio is no longer effected if the donor
returns safely. Where the death does occur, the gift is effective at
the date dominion was handed over; therefore, the subject matter
of the gift passes to the donee and not to the personal
representatives. So in Sen v Headley, the personal representatives
held all the house on trust for the donee. In these circumstances,
the personal representatives can be compelled to perfect the gift
(see Duffield v Elwes (1827)). A donatio is subject to Inheritance Tax
and liability for the tax falls upon the recipient donee, s 200(1)(c)
of the Inheritance Tax Act 1984.6

Notes

1 In Re Lillingstone (1952), the donor (L) in poor health

(bedridden), told the intended donee that she was ‘done for’.
She said, ‘I’m going to give you all my jewellery. I’m giving
you the key to the safe deposit box at Harrods and when I am
gone you can go and get the jewellery’. She then handed over
the keys to a trunk in her room and added that the donee
would find the key to the Harrods safe deposit on the right

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hand side of the finger of a glove. The donee was told that the
key to L’s city safe was at Harrods. L added, ‘I want you to
have all my jewellery except my diamond necklace which is
for my goddaughter. That is in my city safe’. She then took a
packet from under her pillow saying, ‘This is also for you’. L
opened it; the packet contained more jewellery, which she
placed in the trunk. She then locked the trunk and gave the
key to the donee saying, ‘Keep the key it is now yours’. The
court concluded that there had been a valid donatio of all the
jewellery.
2 The courts have held that where the donor has committed
suicide, there is no valid donatio. There has been no authority
since 1961 when suicide was ruled to be no longer a crime. In
Agnew v Belfast Banking Co (1896), the donor gave a bank
deposit receipt book to the plaintiff saying, That is yours if
anything should happen to me’. Nine days later, the donor
poisoned herself, leaving a note dated the day of the gift
showing her intention to commit suicide. The court refused to
hold that there had been a valid donatio on the basis that it was
against public policy since suicide was a crime. Although
Agnew is an Irish case, the principle was applied by the English
courts in Re Dudman (1925), where envelopes containing
money and letters were handed over and one of the letters
clearly indicated that the donor intended suicide. However, it
would appear (from an Irish authority) that a subsequent
decision to commit suicide will not invalidate the gift. In Mills
v Shields (1948), the donor was very ill and was considering
going to Dublin to undergo what would been dangerous
treatment. He gave his priest a parcel containing £600 worth
of stocks, telling the priest that if anything should happen to
him while he was away, he should give the stocks to his
brothers in South Africa. Before undergoing the treatment,
he hanged himself. The court held that a valid donatio had
been made.
3 The deceased in Sen had retained a set of keys to the house
but this was held not to prevent an effective transfer of
dominion over the property retained. Nourse J said ‘By
keeping his own set of keys to the house (he) retained
possession of it. But the benefits which thereby accrued to him
were wholly theoretical. He uttered the words of the gift,
without reservation, two days after his re-admission to hospital

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when he knew that he did not have long to live and when
there could have been no practical possibility of his ever
returning home. He had parted with dominion over the title
deeds. Mrs Sen had her own set of keys to the house and was
in effect in control of it’.
4 In Caine v Moon (1896), Mrs Caine delivered a deposit note to
her mother for safe custody. Later when she fell ill and did not
expect to live she referred to the note held by her mother and
said, ‘Everything I possess and the bank note is yours, if I die’.
The court held that this was an effective constructive delivery
of the subject matter.
5 In Gardner v Parker (1818), the donor, on his death bed, said to
the donee, There, take that and keep it’, handing over a bond
two days before his death.
6 Donatios are usually oral. If the gift is made in writing this
raises a presumption that it was intended either as a gift inter
vivos or testamentary. However, the mere fact that the gift is
in writing will not necessarily invalidate the donatio if the
intention can be proved. In Wilkes v Allington (1931), the donor
delivered a mortgage deed as an intended donatio. He had
written on the envelope containing the deeds of the property
‘deeds relating to Astwood. To be given up at death’. The court,
in holding that this was a valid donatio rather than an abortive
gift inter vivos, said that the writing was simply identifying
the subject matter of the gift.

Question 28

Harry, aged 64, and his wife Anne, aged 62, died last week in a car
crash. There are no children of the marriage. By his will, Harry
left £10,000 to his nephew Neil and the remainder of his estate to
Anne, but if she should predecease him, then to his niece Meg.
Anne left all her estate to Harry with the proviso that if should
predecease her, then all her estate to her nephew Oliver.
Consider the entitlement to the respective estates of Harry and
Anne in the following unrelated circumstances:

(a) where the evidence shows that Harry survived Anne by a few
hours;

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(b) where there is no evidence to show the order in which the

deaths occurred;
(c) where there is no evidence as to the order of the deaths and
Harry died intestate.

Answer plan

The issue in part (a) is straightforward. The main thrust of the

question is a consideration of the statutory presumption as to
survivorship in s 184 of the Law of Property Act 1925 and an
application of the survivorship rule and intestacy.

Answer

As a general rule, a beneficiary must survive the testator to take

the benefit. The failure to survive the testator will, subject to certain
exceptions, cause the gift to lapse. It is important, therefore to
determine the order of deaths:

(a) where there is clear evidence on the balance of probabilities

as to survivorship this must be applied. The order of deaths
would therefore be Anne and then Harry. Anne has therefore
predeceased Harry and her property would fall into his estate
and devolve as the £10,000 to his nephew Neil and the residue
to Meg;
(b) at common law the courts would not presume survivorship
in the absence of clear evidence. Therefore, if one could not
establish which person died first, testator or beneficiary, the
gift would fail. In Underwood v Wing (1855), a husband left all
his property to his wife, stipulating that if she died in his
lifetime, then his property was to go to X. The wife left all her
property to her husband, but if he died in her lifetime, the
property was to go to X. Husband and wife were both killed
when they were swept off the deck of a ship. The court said
that X could not claim because he could not establish which
out of the husband or the wife died first. The court would not
apply a presumption as to order of deaths at common law. In
Wright v Netherwood (1793), the court said that it was more

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reasonable to consider the parties as all dying at the same time

rather than to ‘resort to some fanciful supposition of
survivorship on account of degrees of robustness’.
In order to remedy the unfortunate impasse created by
decisions such as Underwood v Wing, s 184 of the Law of
Property Act 1925 was passed. This provides that where two
or more persons have died in circumstances where it is
uncertain which has survived the other, then the order of
deaths is presumed to have occurred in order of seniority. The
word ‘uncertain’ was considered by the House of Lords in
Hickman v Peacey (1945). Here, two brothers had each made
wills leaving legacies to one another. They were killed when
the house in which they were sheltering during an air raid
attack was hit by a bomb. The argument which prevailed in
the Court of Appeal was that the statutory presumption as to
order of survivorship could not apply because one would say
in the particular circumstances that death had been
instantaneous. The House of Lords reversed the decision of
the Court of Appeal, saying that all that was necessary to apply
the statutory presumption was the slightest element of
uncertainty. Here, although in lay terms, one would say death
was instantaneous, one could not say for certain that the
brothers died at exactly the same moment. Applying Hickman
v Peacey, Anne would be presumed to have survived Harry
with the result that Harry’s estate would pass to Anne and
the property thereafter pass to her nephew Oliver. In Lamb v
The Lord Advocate (1976), the court said that if there is any
evidence on the balance of probabilities as to the likelihood of
survivorship, this should be applied rather than the statutory
presumption. However, there is no indication on the evidence
here; therefore, s 184 would be applied;
(c) if Harry had died intestate, the statutory presumption in s
184 would not apply. Both spouses would be treated as having
died at the same time—s 46(3) of the Administration of Estates
Act 1925. Harry’s property would therefore pass to Neil and
Meg and Anne’s property to Oliver. In any event, the Law
Reform (Succession) Act 1995 prevents the spouse from
inheriting on the intestacy of the other unless the spouse
survived by more than 28 days.

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A common provision in wills is the survivorship clause which

not only refers to the beneficiary predeceasing, but adds the
stipulation that the beneficiary must survive the testator for,
say, one calendar month. That is long enough to resolve a
common accident situation, but not too long so as to hold up
the administration of the estate. Inclusion of a survivorship
clause which specifies a period of survivorship would obviate
the need for s 184.

Question 29

On 1 May, John died intestate. He was survived by his wife Meg,

his mother Betty and his sister-in-law Donna. John and Meg had
been married for six years. Three years ago, John established a
business as a garden designer working from his home, ‘The
Gables’. He asked Donna to assist him and, as she had few assets
of her own, arranged for her to live in an apartment over the garage
at ‘The Gables’. He paid Donna low wages, but the accommodation
was rent free and she often took her meals with John and Meg.
Meg worked part time as a receptionist at a local optician’s. Betty,
widowed, lived alone in an apartment owned by her, supported
by investments and a pension which gave her a comfortable
though not lavish lifestyle.
John devoted long hours to the business and this led to strain
in the relationship with Meg. Eight months before John’s death,
they separated but Meg returned two months ago. At death, John’s
net estate is valued at £200,000 including ‘The Gables’ which was
in his sole name. Shortly before his death, John gave Donna a
collection of rare sketches of gardens worth £80,000. Meg claims
Donna influenced John into giving her the sketches and requests
their return. Donna says John told her he thought he had cancer
and would like her to have the sketches. It transpires John did not
have cancer; he died of heart failure.
Donna consults you to defend her right to the sketches and her
rights, if any, to remain in the apartment. Donna has never received
anything in writing concerning the accommodation, but John had
always assured her he would see her housed.

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What difference, if any, would it make if Meg died three weeks

after John?
Further, if Betty died a month after Meg?

Answer plan

This question seeks to combine several of the issues already dealt

with in earlier chapters on intestacy, capacity, family provision
with the rules relating to a donatio mortis causa. It is a good
illustration of how areas within the law of succession interlink
and that a complete view of the law is often necessary to answer
questions effectively.
In this case, the following should be considered:

• distribution of the estate is according to the rules of intestacy.

Consider the rights of Meg as surviving spouse and the rights
of Betty. Donna may be able to claim Family Provision and/or
estoppel;
• the sketches—are they a gift inter vivos or a donatio mortis causa?
Could the gift be challenged for want of capacity?;
• effect of the death of Meg—possible revocation of a grant to
her. Re-distribution in favour of Betty. What is the effect of
this on a possible claim by Donna for family provision?;
• the death of Betty—how does this affect a possible claim by
Donna?

Answer

John has died intestate: therefore, his estate will be distributed in

accordance with s 46(1) of the Administration of Estates Act 1925.
The potential beneficiaries are Meg as surviving spouse and Betty,
John’s surviving parent. Assuming that Meg is John’s lawful
spouse under a valid or voidable marriage and there is no decree
of judicial separation in force at death, then Meg will be entitled
as surviving spouse. As there are no issue Meg will take the
personal chattels absolutely, the statutory legacy of £200,000 with
interest at 6% per annum and half the remainder absolutely. The
other half of the residue would go to Betty. However, given that

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the total value of the net estate is £200,000, Meg will take the entire
estate. Betty would only be entitled to share if the collection of
sketches was clawed back into the estate thereby increasing the
value to £280,000. Then there could be an argument on behalf of
Meg that the sketches are personal chattels within the definition
in s 55(1)(x) of the Administration of Estates Act 1925 and would
therefore pass to Meg absolutely.
Donna may be able to make a claim for reasonable provision
out of the estate under the Inheritance (Provision for Family and
Dependants) Act 1975. In order to establish locus standi, Donna
would have to show she comes within s 1(1)(e), that is, assuming
John has died domiciled in England or Wales and that she was
dependant upon John either wholly or in part immediately before
his death. She would also have to prove that John was not receiving
full, valuable consideration for the maintenance he provided (s
1(3)). The purpose of this sub-section is to exclude claims where
there is agreement between the parties on shared responsibilities.
Maintenance need not be in monetary terms but could be the
provision of accommodation—Re Wilkinson (1978). The proviso
in s 1(3) was considered by the Court of Appeal in Jelley v Iliffe
(1981). Here, the applicant, a widower, and the deceased, a widow,
related by marriage, lived together in the deceased’s house for
eight years ending with the death of the deceased. They pooled
their resources, including their pensions, to meet common living
expenses. He provided some furniture, looked after the garden
and did some household jobs; she provided him with rent free
accommodation, cooked and washed for him. By her will, the
deceased left all her property to her three children in equal shares.
The applicant successfully appealed against orders striking out
his application. Stephenson LJ said:

To discover whether the deceased was making such a contribution the

court had to balance what she had contributed against what the
applicant had contributed. If there was any doubt about the balance
tipping in favour of the deceased being the greater contributor, the
matter must go to trial. If however the balance was bound to come
down in favour of the [applicant] being the greater contributor, or if
the contributions were equal, there was no dependency of him on her,
either because she depended upon him or there was mutual dependency
between them and his [Link] be struck out.

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In Bishop v Plumley (1990), Butler-Sloss LJ said in considering

whether someone was maintained within s 1(1)(e) and (3), the court
should look at the problem in the round and adopt a common
sense approach avoiding fine balancing computations. In this case,
providing a secure home for the applicant was recognised as a
substantial contribution. Assuming Donna established locus standi,
she would claim the distribution on intestacy has failed to make
reasonable provision for her, in particular, in relation to the
question of future accommodation. The court would take account
of her needs, her age and the likelihood of her obtaining future
employment. Against that the court would look at the entitlement
of Meg.
The onus of proof in challenging the gift of the sketches would
rest with Meg. If the collection was not considered to be a personal
chattel, possible given its subject matter, Betty would have an
interest as the value of the collection would take the total value of
the net estate to £280,000. Betty may therefore be able able to claim
half the £80,000 on John’s intestacy.
Donna could defend by saying the collection was the subject of
a gift inter vivos. She could claim it was handed over with the clear
intention on the part of John that the gift was to have immediate
effect. Where the gift is substantial in relation to the remainder of
the estate the test as to capacity to make the gift moves closer to
the capacity to form the clear animus testandi to make a valid will
(see Re Beaney (1978)). In the absence of any prior evidence of illness
or failing faculties which could impair intention, Meg would have
to allege undue influence. Meg would have to prove Donna had
exerted pressure on John to make the gift against his will.
If there is no evidence to challenge the gift on the ground of
lack of capacity, Meg could allege the purported gift was a donatio
mortis causa, a gift made in contemplation of death and the
conditions for a valid donatio have not been met. In order to
establish a valid donatio, Donna would have to prove the gift was
made in contemplation, although not necessarily in expectation,
of impending death; the gift was conditional on death and there
must have been delivery of the subject matter (see Sen v Headley
(1991) and Re Woodard (1994)).
Given that John handed over the sketches and he has died, two
of the conditions have been met. The problem for Donna if it is
considered the gift is a donatio is the first condition. Was John’s
belief he had cancer a reasonable one? Donna could be put to proof,

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initially by affidavit evidence, as to the circumstances of the

handing over of the collection and the words used. The belief in
impending death must be a reasonable one. The English courts
suggest the test is subjective. So, for example, in Re Miller (1961),
the court accepted a woman could make a valid donatio where she
had a fear of flying. Commonwealth cases have adopted an
objective test, the court deciding whether the contemplation is
reasonable; see, for example, Thompson v Median (1958).
A further possibility may be a challenge by Meg that the
purported gift is a disposition caught by s 10 of the Inheritance
Act 1975, that is, it is a disposition made within six years of the
donor’s death with a view to defeating a claim under the 1975
Act. Meg would have to prove that John gave away the sketches
to deliberately reduce the value of the net estate available for an
order for provision. On the face of it, this intention is unlikely.
John has died intestate; therefore; the bulk of his estate passes to
Meg in any event. If he had wanted to frustrate Meg’s inheritance,
he would have made a will leaving his property to someone other
than Meg.
Another consideration affecting the gift of the collection is the
incidence or burden of Inheritance Tax. If John has not made any
previous dispositions, then the value of the estate passing to Meg
would be free of Inheritance Tax by virtue of the spouse exemption.
The remaining value, the gift of the collection, although caught
for tax, would be charged at the nil rate as falling within the nil-
rate band. If, however, the spouse exemption did not apply (see
below regarding Meg’s failing to survive), then tax could be
payable as the value of the collection exceeds the nil-rate band
and the liability to bear the cost of the tax would fall on the
recipient, Donna.
Assuming Donna has established prior dependence, her
chances of claiming more from the estate in addition to the
sketches will rest on her ability to prove that John has failed to
make reasonable provision for her maintenance. The court
would consider any moral obligation owed by John to Donna,
the value of her existing assets including her right to keep the
collection and the claims of Meg as surviving spouse. Meg
would be in a strong position. She has the bulk of the estate on
intestacy. In considering her rights in family provision, the basis
is the spouse provision, not simply maintenance. The court
would consider the length of the marriage and the contribution

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Meg has made to the marriage. The onus would be on Donna to

alter the distribution of the estate by claiming that John has
failed to make reasonable provision for her.
An alternative, if the apartment is regarded as separate
accommodation from ‘The Gables’ itself, is that Donna may have
a claim in proprietary estoppel as used in Re Basham (1987).
In order to establish a claim, Donna would have to prove that
she reasonably believed she was going to receive the apartment
on John’s death. Further, that the belief was encouraged by
John; that she has acted to her detriment and she has acted in
the belief and reliance that she would be given the property on
death. The claim would only be possible if the accommodation
was held under a separate title to the remainder of ‘The Gables’
and, for example, in working for John for low wages she was
acting on the reliance, in the light of his representations, that she
would be left the apartment. Against Donna would be the
argument that she was living rent-free and meals were being
provided, hence the low wage and, if she is to proceed with a
claim, she might have a stronger case applying for maintenance
provision out of the net estate under the Inheritance Act 1975.
If Meg died three weeks after John, she would lose her
entitlement to the estate—s 1 of the Law Reform (Succession)
Act 1995. If a Grant of Administration had been issued to Meg
(she would be entitled under r 22 of the Non-Contentious
Probate Rules 1987), the grant would be revoked. It is unlikely,
indeed, it would have been unwise, that any distribution of
assets had taken place in view of the requirement of conditional
survivorship of the spouse on intestacy and the possibility of a
family provision application by Donna. The death of Meg
would mean that Betty would be entitled to the entire estate as
surviving parent of the intestate deceased. The re-distribution
could improve Donna’s chances of a successful application for
reasonable provision from the estate for she will no longer be
competing with a surviving spouse and Betty appears to be well
provided for compared with Donna. There would be an
Inheritance Tax liability on Donna in respect of the gift of the
collection as the value would take the estate over the nil-rate
band threshold.
If Betty died after Meg, the assets would pass according to
any valid will made by Betty. However, if Betty died intestate
and there are no surviving blood relatives, the assets, including

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those from John’s estate would devolve on bona vacantia to the

Crown or the Duchies of Cornwall or Lancaster, depending
upon where Betty lived. Donna could have no claim to the assets
on intestacy as she is not a blood relative, merely a relative by
marriage. Again, any case for family provision may be stronger
given there are now no relatives of John entitled to his assets. If
Betty herself had been considering a claim for reasonable
provision, as a dependant, the right would die with her—Whyte
v Ticehurst (1986).

Question 30

Gerald, a widower, died in May. His will, executed five years ago,
contains (inter alia) the following provisions:

(a) to my sister Edith, my gold watch;

(b) to my dearest brother-in-law, my stamp collection;
(c) to my friend Arthur, a Mercedes motor car;
(d) to my nephew Eric, the £500 in my account with the Eastshire
Building Society;
(e) to my godson Jeremy, £2,000 payable out of my account with
the Northshire Building Society;
(f) to my uncle Samuel, my 1,000 ordinary shares in Pixons;
(g) £15,000 each to my daughters Kate and Emily.

You ascertain the following:

(i) Edith and Kate both predeceased Gerald, each leaving two
daughters alive at the date of Gerald’s death;
(ii) Gerald had two brothers-in-law, both of whom he visited
regularly prior to his death;
(iii) at the date the will was executed, Gerald owned a Skoda car
which he replaced six months ago with a Ford Fiesta. He has
never owned a Mercedes;
(iv) at the date of Gerald’s death, the balance of his account with
the Eastshire Building Society stood at £200;
(v) the Northshire Building Society account was closed in 1990;
(vi) in 1990, Fixons had converted its £1 ordinary shares into two

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(vi) in 1990, Fixons had converted its £1 ordinary shares into two
units of 50 p ordinary stock. Gerald owned 2,000 units of
Pixons ordinary stock at the date of his death.
Advise Gerald’s executors in respect of the above gifts.

Answer plan

This is a classic form of constructional question based upon the

application of the meaning of legacies and devises and the
doctrine of lapse. It is important in a question of this nature to
define the terms ademption and abatement and to identify the
different types of legacy. Once the type of legacy is identified,
then one applies this to the individual beneficiaries to see
whether or not to apply the doctrine of lapse. The best approach
to avoid confusion in applying the law to the facts is to deal with
each clause separately.

Answer
The advice to the executors is given by reference to each individual
clause.
(a) The gift to Edith is a specific legacy, that is to say, that Gerald
identifies his gold watch in such a way as to separate it from other
aspects of the estate. A pre-condition of the law of succession is
that a beneficiary should survive the testator in order to take the
benefit. There are exceptions to this doctrine of lapse. However,
in this case, since Edith, Gerald’s sister, has predeceased Gerald,
the gift will lapse. The important exception contained in s 33 of
the Wills Act 1837 will not apply, since this section only applies to
gifts to children and remoter issue and here we are given that
Edith is the testator’s sister.
(b) This gift is ambiguous given that there are two brothers-
in-law. Section 21(1)(c) of the Administration of Justice Act 1982
allows for the admission of extrinsic evidence, that is to say,
evidence outside of the will, in order to identify for which
brother-in-law provision is made. This evidence could include
statements made by Gerald which would amount to direct
extrinsic evidence, or the court could permit the admission of
circumstantial extrinsic evidence to indicate which brother-in-
law is to receive the gift. This could include, for example,

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evidence that one particular brother-in-law was always

interested in the stamp collection. If the extrinsic evidence
cannot resolve which brother-in-law Gerald intended to benefit
then the gift could fail for uncertainty. The stamp collection
would then fall into residue.
(c) The legacy here is a general legacy, that is to say it does not
identify a particular item owned by Gerald at the date of death,
but is construed as a direction to the personal representatives to
acquire the asset for the beneficiary. A problem here could be one
of specifics given the possible uncertainty as to the particular
model and type of Mercedes and given a possible discrepancy in
value between a Mercedes motor car and the type of cars which
Gerald had previously owned and owned at death. It would be a
matter for the personal representatives to negotiate for Arthur, in
relation to the value of the whole estate, whether to purchase a
suitable car or to negotiate a cash settlement.
(d) The legacy here is demonstrative in nature (see Ashburner
v McGuire (1786)). That is to say, the legacy is general in nature,
but points to a specific fund. If there are sufficient monies in the
fund then the legatee takes the full legacy from the fund.
However, in this case, there remains a balance of only £200 in
the fund. Eric would be entitled to the £200 and would then
have to prove as a general legatee for the remaining balance of
£300. Therefore, although the fund has abated to the extent of
the reduction, Eric could still take the full amount of the legacy
if there are sufficient funds remaining to meet the requirements
of the general legatees.
(e) The gift to Jeremy is also a demonstrative legacy.
Demonstrative legacies have been said to be something of a hybrid;
that is to say, they are specific in nature in pointing to a particular
fund, but where that fund is diminished or has gone, the legatee
can prove as a general legatee. This would be the case here in that,
although the account has closed, Jeremy could prove for the full
amount of the legacy as a general legatee. The only danger then
would be if there were insufficient funds in the estate to meet the
requirements of the general legatees, then Jeremy’s legacy would
abate rateably accordingly to value.
(f) The wording of the gift here would suggest a specific
legacy, that is to say, by using the possessive word ‘my’ in
respect of the Pixon’s shares, Gerald is indicating the particular
shares that he holds. The danger in construing a gift this specific

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is that the gift may no longer be identifiable at the date of death

and therefore subject to ademption. Whether ademption has
occurred here will depend upon whether the change in the
nature of the shares is considered to be a change in one of form
only as, for example, in Re Kuypers Trusts (1925) or one of
substance as, for example, in the case of Re Slater (1907). If it is
the case that the Pixon’s shares held at death are essentially the
same in nature, then Samuel would be entitled to 1,000 shares.
(g) Assuming that Emily has survived Gerald, then she will take
the pecuniary legacy of £15,000. We are given that Kate
predeceased Gerald but was survived by two daughters who were
alive at the date of Gerald’s death. In this case, then, although the
gift to Kate would appear to lapse, the gift is saved by the operation
of s 33 of the Wills Act 1837 as amended by s 19 of the
Administration of Justice Act 1982. The effect of this provision is
that where a gift is made by a will to a child or remoter issue of
the testator and that child or remoter issue predeceases the testator
survived by issue, then, in the absence of a contrary direction, the
surviving issue will take the gift that the beneficiary would have
taken had he or she survived. Kate’s daughters will therefore be
entitled to share the gift of £15,000.

Question 31
Tim was killed by his wife, Alice. Alice was convicted of
manslaughter as the court found that her to have been provoked
by Tim over a period of many years.
Tim made a validly executed will which left:

• ‘my car to my brother, Frank’;

• ‘£10,000 to be shared equally between my nephews and nieces’;
• ‘the rest of my estate is to go to Alice, but if she predeceases
me, then to my sister, Gloria’.

Tim was survived by Alice, his brothers Frank and John, sister
Gloria and four nephews and nieces.
It has been discovered that at the date, he made his will he had
a Rolls Royce motor car but just before his death, he had sold his
Rolls Royce and purchased a cheap secondhand Ford vehicle.

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One year after Tim’s death, Gloria gave birth to a child, Sophie.
Discuss the distribution of the estate (ignoring the possibility
of any claims under the Family Provision legislation).

Answer plan

In questions of this nature where several different principles are

combined, it is good practice to deal with each clause of the will
in turn and assess its consequences. In this case, it will be
necessary to deal with the possible ademption of the gift to
Frank, the construction of the gift to nephews and nieces,
bearing in mind the birth of Sophie a year after Tim’s death, and
the effect of the conviction for manslaughter on the gift to his
wife, Alice.

Answer

The gift of ‘my car’ to Frank seems to be a specific gift. The use of
the word ‘my’ is a strong indication of this and is in line with the
decisions in Re Sikes (1927) and Re Gibson (1866). As a specific gift,
it is subject to the doctrine of ademption and if the item in question
does not form part of his estate at the date of the testator’s death,
the gift will fail. The problem here is to ascertain whether the ‘my
car’ Tim was referring to was the car he owned at the date he
made his will or the car he owned at the date of his death. Section
24 of the Wills Act 1837 provides that a will speaks from death as
to property unless there is a contrary intention. On the basis of s
24, Frank would get the Ford car, but if there were a contrary
intention, the gift would fail.
The courts have drawn a distinction between a ‘specific
specific’ gift and a ‘general specific’ gift. If the former is found
a contrary intention will easily be presumed. If the latter, s 24
will prevail. A ‘general specific’ gift is one which may increase
or decrease in the time between making the will and death. An
example would be a gift of ‘all my shares’ which would be
construed in accordance with s 24 as being all the shares held by
the testator at his death. A ‘specific specific’ gift occurs where
the testator refers precisely to one or more particular items of

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property which are taken to mean the particular item or items

he had when he made his will. An example would be a gift of
‘the gold watch given to me by my wife’. Here, s 24 will be
excluded and a contrary intention will prevail. In Re Sikes (1927)
(which concerned a gift of ‘my piano’) and Re Gibson (1866)
(which concerned a gift of ‘my 1,000 North British Railway
preference shares’), the court found s 24 to be excluded. In Re
Sikes, the testator after the date of his will sold the original piano
and purchased a new one. The court found that the gift had
adeemed. It may be that the court was influenced by the
monetary value of the particular items. In Re Sikes, the new
piano was worth considerably more than the old one and in Re
Gibson, the court gave the following example:

Suppose a man to have at the date of his will a picture of ‘The Holy
Family’ by some inferior artist and to give by his will ‘my Holy
Family picture’. He afterwards disposes of the picture and
subsequently acquires a very much better one on the same subject
painted by an eminent artist. Would it not be a monstrous
construction to hold that the picture in his possession at the time of
his death would pass?

This justification does not work in our case. The replacement car
is of considerably less value than the original. It could be argued
by Frank that the rule under s 24 should only be removed by a
clear contrary intention and that the court should hold that with
an object like a car which is commonly changed at regular
intervals, a construction excluding s 24 was clearly
inappropriate.
The gift to the nephews and nieces is a class gift and thus the
share of each nephew or niece will vary in accordance with the
number of persons who make up that class. The problem is that
a class of this nature is likely to increase in number after the
testator’s death and the shares of each beneficiary cannot be
ascertained until all possible beneficiaries have been identified.
In this case, on Tim’s death, the potential share of each
beneficiary is £2,500, whereas the birth of Sophie reduces it to
£2,000 and further reductions may occur in the future. This
leads to the trust fund being tied up for a number of years as
trustees cannot ascertain a minimum share. In order to avoid
these difficulties, there have evolved some general class closing

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rules. In particular, where, as here, there is an immediate vested

gift, the class will close on the testator’s death if there are any
members of it then living. If no members are then alive, the class
remains open indefinitely. In order to prevent the operation of
the class closing rule, an express contrary intention has to be
inserted in the clause as in Re Edmondson (1972), where the
testator added the words ‘whenever born’. In our case, there is
no such intention and the class will close on Tim’s death around
the four living nephews and nieces. This means that Sophie (and
any further, later-born nephew or niece) will be excluded.
As Alice has been convicted of the murder of Tim, the
common law forfeiture rule will come into operation. It is a rule
of public policy which dictates that a person who kills another
cannot benefit from the other’s will or intestacy. In Jones v
Roberts (1995), the court held that the forfeiture rule applied to
all forms of manslaughter and unlawful killing. The earlier case
of Re H (1990), which held that it would only operate if the death
occurred as a result of ‘deliberate, intentional and unlawful
violence or threats of violence’, was doubted. Under the
provisions of s 2 of the Forfeiture Act 1982, the court can make
an order modifying the effect of the rule having regard to the
conduct of the offender and of the deceased and all other
relevant circumstances. In Dunbar v Plant (1997), it was held that
a ‘modification’ of the rule could include granting full relief
against forfeiture by allowing the original beneficial interest to
stand. In our case, the court will take particular note of the long
provocation suffered by Alice and, as in Re K (1985), may be
inclined to grant relief if there were no other persons to whom
the testator owed a moral responsibility.
If the court does not grant relief, the status of the gift to Gloria
must be questioned. In Jones v Midland Bank (1995), the court
found on similar facts that the gift over was inoperative, as it
took effect only if the original beneficiary did not survive. In
practice, the insertion of the words ‘or if this gift fails for any
other reason’ would remove all the difficulties. Here, then, it
seems that Gloria will not benefit and (to the extent that relief
against forfeiture is not applied) the residue of the estate will
pass on intestacy. Alice, as the widow, is again precluded from
benefiting and the estate will pass (in the absence of issue and
parents) to the brothers and sisters (Frank, John and Gloria) on
the statutory trusts.1

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Q & A ON SUCCESSION

Note

1 In TWGS v JMG (2000), Mr and Mrs S were murdered by their

son, R. R was their only child and had a child, T of his own.
The court found that the gift to R was governed by the
forfeiture rule, but that T (although issue) could not inherit.
They held that the issue of a child could only inherit if the
relevant parent had predeceased the intestate. The issue could
not inherit if a parent disclaimed or, as in this case, was
precluded from inheriting. The estate passed to Mr and Mrs
S’s brothers and sisters as the next surviving relatives.

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 CHAPTER 8

THE ADMINISTRATION
OF THE ESTATE

Introduction

The administration of the estate is a vast topic. It is a mix of

academic and practical points and other subjects—notably
Inheritance Tax and, to a lesser extent, equity and trusts—have
important influences on this area. One must consider the nature
of the course that is being studied, its syllabus content and the
emphasis placed by the person delivering the course on the
different aspects of administration.
The process of the administration of an estate starts with the
requirements that have to be fulfilled in order to obtain a grant.
In a minority of cases, a grant is not required, but otherwise the
three principle types of grant must be understood. If the
deceased leaves a valid will which appoints executors who are
willing to act, a grant of probate will be required. If there is a
valid will but, for some reason, there is no executor able or
willing to act, a grant of administration with the will annexed is
needed. If the deceased died totally intestate, a grant of simple
administration is required. Other specialised forms of grants are
offshoots from these main types. Note should be taken of the
ways in which an executor accepts his office and the possibility
of subsequent renunciation. These should be contrasted with the
rules for administrators and attention should be paid to the
Courts’ general jurisdiction to ‘pass over’ applicants and the
appropriate use of citations and caveats. The position, liability
and responsibilities of an executor de son tort also require study.
Once a grant has been obtained, the duties of the personal
representative fall into three broad categories;

• realisation and collection of assets;

• payment of debts;
• distribution to the beneficiaries.

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Q & A ON SUCCESSION

In carrying out these duties, the personal representatives have

a liability to the estate and breach of a duty is called a devastavit.
In order to protect themselves several practical safeguards (such
as advertisements under s 27 of the Trustee Act 1925) can be
used by the personal representatives who also have wide
powers of estate management and delegation (under the Trustee
Act 2000) to assist them.
Complex problems arise in relation to the payment of debts
and legacies. In relation to the payment of debts, one has to
distinguish between the rules for solvent and insolvent estates,
secured and unsecured debts. In relation to unsecured debts, the
Administration of Estates Act 1925 provides a statutory order for
ascertaining which of the beneficiaries’ interests will ultimately
bear the burden of the deceased’s debts. This abatement order is
subject to an express contrary intention and major difficulties can
arise here—especially where there is a partial intestacy. The
problems are even greater when it comes to the payment of legacies
where the courts have given conflicting decisions as to whether
(again in the case of a partial intestacy) legacies should primarily
be paid out of undisposed property or residue as a whole before it
is divided up.
Once the debts have been paid, the property can then be
transferred to the beneficiaries using the appropriate form of
transfer. Often a trust is created by will and the personal
representatives change their functions from those of (normally)
an executor to those of a trustee.
In the leading case of Ross v Caunters (1979), the courts found a
firm of solicitors liable in negligence not only to a testator, but
also to the testator’s intended beneficiaries. Subsequent decisions
have reaffirmed this rule and there is now quite a body of case
law on this area. It should be carefully noted.

Question 32

Personal representative or trustee? Is the distinction important

when, as often happens, the same person is appointed to both
offices?

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Answer plan

This is a relatively confined topic but one that is important in

practice. The differing duties between personal representatives
and trustees should be explained followed by the differences in
liability between personal representatives and trustees. The
difficulties which can arise and the importance in drawing the
distinction should then be illustrated by reference to the case law,
in particular, the cases of Attenborough and Son v Solomon (1913);
Re Ponder (1921); Harvell v Foster (1954); and Re King’s WT (1964).

Answer

It is important to distinguish in what capacity a person is acting,

whether as personal representative or trustee. The functions of
the respective offices differ and their authority differs depending
upon the type of property being transferred.
The function of the personal representative is to gather in the
assets of the deceased, value them, assess the debts that are owing
from the estate, pay them together with the funeral testamentary
and administration expenses; calculate death duties which may
be payable and, out of the net proceeds, distribute the estate
according to the will or intestacy or a combination of both.
Generally speaking, the office of personal representative lasts for
life although, in practice, the role would end once the estate is
wound up. The function of a trustee is to hold assets until a
specified event occurs and act in accordance with the trust
instrument and the general law.
There is no statutory definition of the end of the administration
period. In practice, administration would end when the personal
representatives make their final distribution of property to the
beneficiaries and sign and hand over the final estate accounts. An
exception would be where a personal representative is holding a
limited appointment, for example, where the testator has by will
appointed X as his executor and when the will takes effect, X is
under the age of 18 and cannot therefore act. If X has been
appointed sole executor, an application to the court would have
to be made for a grant for letters of administration with will

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annexed (cum testamento annexo), limited during the minority of

the infant (durante minore aetate)1
Where the same person has been appointed personal
representative and trustee, administration ceases and trusteeship
begins, in the case of land, when the personal representative
assents to himself. In the case of pure personalty, there would either
be an assent or, more commonly, the trustee would take over the
pure personalty when the administration period ends. The
distinction is important for, in the case of the personal estate, the
authority of the personal representatives is several whereas the
authority of trustees is joint. Where there has been no formal assent
of the personalty from personal representative to trustee, it is a
question of fact when the administration period has ended
(Attenborough and Son v Solomon (1913)).2 A sale by a sole, or sole
surviving, personal representative will be sufficient to overreach
equitable interests, whereas sale by a sole trustee will not, and, in
the case of a sale by a trustee, the purchaser must insist on the
appointment of a co-trustee in order to obtain a title free of over
reachable equities.3
A new trustee can be appointed to an existing trust by the
existing trustees or by the personal representatives of the last
surviving trustee (s 36 of the Trustee Act 1925). There is no such
provision in the case of administration. Where an executor dies
after obtaining the grant of probate but before completing the
administration of the estate and that executor has appointed an
executor by his will, then he becomes executor by representation
to the first estate under the ‘chain of representation’ (s 7 of the
Administration of Estates Act 1925). Where there is no proving
executor to the estate of the deceased executor or where there is a
grant of administration and the personal representative has died
before completion of the administration of the estate, then a grant
de bonis non must be obtained.
Although a person may be named both personal representative
and trustee, he cannot hold property in both capacities at the same
time. Once the administration period has ended, he will hold as
trustee, but his role as personal representative will not cease, so
that if, at some later date, further property falls into the estate (for
example, a gift saved as a result of the operation of s 33 of the
Wills Act 1837), the person will hold that property as personal
representative until it has been dealt with in accordance with the
will or intestacy of the deceased.

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In Attenborough and Son v Solomon, the court said it was a

question of fact when the administration period ended. Some 13
years had elapsed from the settlement of all the debts to the
pledging of the plate by one of the sons. The court decided that
the administration had long ended and, in pledging the plate, the
son was acting as a trustee and therefore acting alone, he could
not give good title to the property. In Re Ponder (1921), a widow
was granted letters of administration to her husband’s estate. She
paid the debts, ascertained the residue and divided the residue
into separate funds as required by the pre-1926 Statutes of
Distribution. The court held that she had assumed the character
of trustee in respect of the property so advantage could be taken
of the statutory power to appoint new trustees. The decision was
queried in Harvell v Foster (1954), where the Court of Appeal
allowed a daughter to take action against the sureties of an
administration bond issued when the daughter’s husband had
obtained letters of administration with will annexed owing to the
daughter being under age when her father’s will took effect. The
Court of Appeal in referring to Re Ponder appeared to suggest that
the personal representative could hold the property in a dual
capacity, criticising the judgment of Mr Justice Sargant, saying
that where he stated the capacities of personal representative and
trustee are mutually exclusive, he stated the proposition too widely.
The court in Harvell refused to define exactly the moment at which
the personal representative would become trustee. In Re Cockburn
(1957), Mr Justice Danckwerts, commenting on Harvell v Foster,
said that the observations in the case were obiter in so far as they
cast any doubt upon the decision in Re Ponder. Harvell could be
construed narrowly as a case turning upon the interest of the
administration bond.
In the case of title to land, prior to 1964, conveyancers had
adopted a practice of following Re Ponder in accepting that a
personal representative had the power to appoint trustees if he
was acting in the capacity of a trustee. However, in Re King’s WT
(1964), the court regarded itself bound by s 36(4) of the
Administration of Estates Act 1925, which provides that an assent
in writing must be made by the personal representative naming
the person in whose favour it is given in order to vest the legal
estate in the person as trustee. Previously, it had been believed
that where the same person was named personal representative
and trustee, the transfer of the legal estate would occur on the

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appointment of trustees by the former personal representative.

Re King’s WT shows that even where the same person is personal
representative and trustee, he should execute a formal assent to
himself from his capacity as personal representative to that of
trustee in respect of the legal estate to the land.4
The contrast of the nature of the offices of personal
representative and trustee and in particular the respective
authority in the transfer of either personal or real estate shows
that it is important to distinguish in what capacity the individual
is acting at the time of the transfer.

Notes

1 When the infant becomes of age, he or she will not

automatically become executor and must apply for a cessate
grant. Contrast the situation where the deceased has appointed
two executors, one of whom is an infant and the other one
proves the will at the date of death, power would be reserved
to the infant to prove when he or she came of age.
2 In Attenborough and Son v Solomon (1913), the testator appointed
his two sons as executors and trustees and left part of his estate
to them and part in trust for his daughter. The testator died in
March 1878 and by March 1879, all the debts and legacies had
been paid. A silver plate in trust for the daughter had always
been in the custody of one of the sons. In March 1892, the son
pledged the plate (the lender did not know it was trust
property). The son died and his brother took action against
the lender on the basis that the lender did not have title to the
plate. The House of Lords held that the sons had done all they
could as executors in 1879 and, as there was nothing more to
be done as executors, the chattels vested in them as trustees.
As a result, the son could not on his own account give a valid
title to the lender and the plate was recovered.
3 An exception is a sale by a sole trustee, constituted as a trust
corporation, for example, a bank. The trust corporation can
give good title.
4 In Re King’s WT, the executors did not execute an assent of the
land in their favour as trustees. The sole surviving executor
and trustee appointed a co-trustee and, five years later, when

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he died, his will was proved by X who also became executive

by representation in the estate of the original testatrix. Both
original executors named in her will had now died and by
failing to execute the assent the title became diverged and the
real estate remained in the administration therefore, being held
by the executor by representation.

Question 33

You are consulted by Eric, the principal beneficiary to the estate

of his late brother, Frank, a bachelor, who died four months ago.
By his will, Frank appointed Len to be his executor; he
bequeathed £2,000 to his friend Sam; his collection of Dresden
china to his sister May; his house and ‘the remainder of my effects’
to Eric. There are no other surviving relatives.
Eric informs you that Len, who has not as far as Eric is aware
taken out a grant of probate, has gone to live in France. Eric has
discovered Len has paid the funeral account and entered into a
contract to sell the house. Eric has asked Len to settle matters
quickly and had indicated that he (Eric) did not want to enter into
possession of the house. It transpires that the purchaser is Mike, a
friend of Len’s, and the agreed price is well below the market value.
Mike admits that the intention is to redecorate, assisted by a loan
from Len, sell at a profit and divide the proceeds with Len. Further,
Len had handed over two pieces of the china to Mike to obtain a
valuation and one piece was broken whilst in Mike’s possession.
Sam cannot be traced. Apparently, he left the area five years ago
and no one has heard from him since.
Eric seeks your advice on the steps he can take to recover the
assets and complete the distribution of the estate.

Answer plan

The question is concerned with the nature of the office of executor

and the rules concerning acceptance of office. One should then
consider the duties and, briefly, the liability of the executor and
the accountability of Mike as executor de son tort.

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Q & A ON SUCCESSION

Answer

An executor named in the will does not have to formally accept

the office. After the death of the testator, payment of a funeral
account by itself may not constitute acceptance of office for this
could be construed as an act of support for a friend. However,
Len has also taken steps to sell the house and value assets. These
steps would be taken as acceptance of office by Len.
The executor is obliged to proceed with the administration of
the estate with due diligence. Delay in obtaining the grant, thereby
causing potential loss to the estate, can amount to devastavit, that
is, breach of trust by a personal representative. Eric should attempt
to find Len with a view to issuing citation, calling upon Len to
proceed with the administration of the estate or formally renounce
the appointment. If Len cannot be found, Eric should seek an order
of the court revoking the appointment of Len (In the Goods of
Loveday (1900)). The way would then be open for Eric, as residuary
beneficiary named in the will, to apply for letters of administration
with will annexed, de bonis non administratis, under r 20 of the Non-
Contentious Probate Rules 1987. The estate will be bound by all
bonafide acts carried out by Len, such as settlement of the funeral
account. Len would be entitled to indemnity from the estate for
payment of the account.
In the case of the contract for the sale of the house, this amounts
to misappropriation of assets under the general heading of
devastavit. The personal representative is under a duty to obtain
the best price possible for the assets whereas in this instance there
is evidence of collusion.
The personal representative must ensure all reasonable steps
are taken to ascertain the debts of the estate. Failure to do so can
render the personal representative liable for any losses. Section 27
of the Trustee Act 1925 sets out the advertisements which must be
placed for claims against the estate. However, the statutory
advertisements will not protect the personal representative where
a beneficiary cannot be found. Advertisements would have to be
placed asking for information concerning Sam. In the absence of
definite proof of decease, one cannot assume that Sam’s share has
passed. If there is no response to inquiries, application can be made
to the court for an order in the terms laid down in Re Benjamin
(1902) requesting a ‘Benjamin Order’, allowing the personal

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representative to distribute the estate on the basis that the

beneficiary has died before the testator. As an alternative, the
personal representatives could take out insurance cover against
the possibility of Sam turning up or seek an indemnity from the
beneficiaries.1
Where, as in the case of Mike, someone takes estate assets
without authority, that person is constituted an executor de son
tort or intermeddler in the estate. A person who is constituted an
executor de son tort is liable, however innocently he has acted
(New York Breweries v AG (1899)). Mike would be liable to the
extent of the value of the estate assets which have come into his
hands. Mike can be called to account including for losses which
have occurred (IRC v Stype Investments (Jersey) Ltd (1982)). If,
however, Mike is a recognised valuer and Len has given Mike
the china in good faith (unlikely in view of the deal over the
house), then the power of delegation by a personal
representative under the Trustee Act 2000 could be pleaded.
Mike could still be made liable for the breakages under the
general principles of negligence.

Note

1 In Re Evans (1999), the deceased died intestate and letters of

administration were issued to his daughter, E. The two
beneficiaries were E and the deceased’s son who had not
been heard of for 30 years. E took out insurance cover and
vested the estate in herself. When the son did turn up, he
argued that the payment of the insurance premium (£525)
was not a proper administrative expense as its effect was
merely to vest the whole estate in E. The court held that E’s
action was entirely proper and commented that personal
representatives should be encouraged to seek practical
solutions to difficult administrative problems rather than
face the expense of resorting to court—in this case, to obtain
a Benjamin Order.

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Question 34

Consider the circumstances where, in dealing with the assets of

the deceased, a grant to the estate may not be necessary.

Answer plan

This question can be divided into two main parts: (1) consideration
of the assets which do not pass to the estate on the death of the
deceased; and (2) assets which do pass but, due to their relatively
small value, a grant is not required.

Answer

A basic rule of the law of succession is that one cannot distribute

the estate of the deceased on the strength of the will alone or, in
the case of undisposed of property, simply following the rules of
intestate distribution. Generally, in order to distribute estate assets,
title to the estate must be obtained by an authorised person, either
an executor or administrator, that is, the person or persons
obtaining the grant to the estate. However, there may be
circumstances where a grant may not be necessary.
There may be assets which form part of the estate for Inheritance
Tax purposes, but pass outside the terms of the will or rules of
intestacy where the deceased held property as a beneficial joint
tenant. Here the interest to which the deceased was entitled will
pass automatically to the surviving joint tenant(s) by virtue of the
right of survivorship, the jus acresendi. The growth of home
ownership in the UK since the late 1950s has seen an increase in
the ownership of the matrimonial home on a joint basis. More
recently, the increase in parties cohabiting rather than entering
into a lawful marriage has seen the added need for joint ownership
as the best way to protect the interest of the cohabitee. On the
death of the deceased, the interest passes to the co-owner(s)) on
proof of survivorship, either through direct evidence or by virtue
of the statutory presumption in s 184 of the Law of Property Act
1925, thereby bypassing the terms of the will or the rules of
intestate succession. This means the statutory survivorship period

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for spouses taking on intestacy in s 1 of the Law Reform

(Succession) Act 1995 will not affect co-ownership.
The value of the interest of the deceased will be subject to
Inheritance Tax. In the case of realty, the usual practice is to
discount the value passing on death by approximately 10% to take
account of the continuing occupancy of the surviving party.
However, if the parties are a husband and wife, the related
property rules for Inheritance Tax mean that no discount is
available. This is of little importance in practice, as property
passing to a surviving spouse is totally exempt from Inheritance
Tax, irrespective of value.
The interest of the deceased in the joint property will pass
according to the will or intestacy where the interest was held as a
beneficial tenancy in common. In this situation, the deceased can
direct by will who should receive his half share or it will form part
of his estate on his intestacy. In this situation, a grant to the estate
will be necessary. A beneficial joint tenancy can be converted to a
tenancy in common inter vivos by a letter of severance.
There are some investments which may pass directly to a
beneficiary by virtue of a statutory nomination. A nomination must
be in writing and attested by one witness. Nominations are now
confined to monies held in Friendly Societies and Industrial and
Provident Societies, to a limit in each case of £5,000. The effect of
the nomination is to pass the property directly to the nominee
even if a will is executed after the date of the nomination. Again, a
grant will not be required although the value of the property may
be liable to Inheritance Tax.
Where the deceased has made valid gifts inter vivos, these
clearly do not form part of his estate at death, but belong to the
donee from the date of the gift. There are Inheritance Tax
advantages in making gifts inter vivos. Most types of property
will be potentially exempt from Inheritance Tax. That is to say,
provided a valid gift inter vivos is made and the donor survives
seven years from the making of the gift, the property passes free
of Inheritance Tax. Certain gifts do not qualify as potentially
exempt transfers, for example, gifts into a discretionary trust.
Also, property where the donor has not divested himself of
interest will mean the seven year period will not start to run.
Furthermore, where the donor must take care, for Inheritance
Tax purposes, is ensuring the gift is not construed as a donatio
mortis causa. In this case, the gift only takes effect on the death;

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therefore, advantage could not be taken of the seven year

period. However, Inheritance Tax considerations apart,
property which forms a donatio mortis causa, that is, a gift in
contemplation of death, will not form part of the estate of the
deceased; therefore, a grant would not be needed.
It is a question of intention whether the gift is a donatio or gift
inter vivos. The conditions which apply to make the gift donatio
are: (1) the gift is made in contemplation, although not necessarily
in expectation, of death (a general contemplation is insufficient);
(2) the gift is conditional on death; and (3) dominion over the
property must have passed to the donee or a person acting as
agent of the donee. The subject matter must be capable of passing
by way of a donatio, for example, the keys to a car coupled with a
clear intention to give as in Re Woodard (1995) and land, as in Sen
v Headley (1991), where the handing over of keys to a deed box
were taken as intention to give the donor’s house by way of donatio.
(For a more detailed consideration of this method of giving, see
the answer to Question 27.)
The property referred to above does not pass to the personal
representatives. There is another category of property which does
not form part of the estate at death at all. The reason is beneficial
entitlement has passed during the life of the deceased. No grant
of representation is needed and this property does not form part
of the estate for Inheritance Tax.
The beneficial entitlement to policies of life assurance can be
assigned by the policy holder inter vivos. The person on whose
life the policy is effected can create an implied trust in favour of
his spouse and/or his children under s 11 of the Married
Women’s Property Act 1882. If the policy holder wishes to
benefit any other person, he or she can do so by declaring an
express trust. It is the policy holder who assigns, that is, the
person on whose life the policy is effected. In order to effect a
policy on the life of another, the person who wishes to take out
the policy must prove an insurable interest. On the death of the
person on whose life the policy is secured, the policy monies are
payable directly to the beneficiaries and do not form part of the
deceased’s estate. The only way the policy monies could be
clawed back for Inheritance Tax is where the policy is assigned,
but the person on whose life it is effected continues to pay the
premiums. Each premium paid, to keep the policy valid, is
considered to be a gift of rights under the policy; therefore, the

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policy moneys could be caught for tax unless the payments

were treated as exempt gifts.
Another significant source of funds concerns pension benefits,
particularly death in service benefits. Many occupational pension
schemes are drafted in such a way that death in service benefits
which would normally accrue to the estate of the deceased can
pass directly to beneficiaries. Usually, the scheme will provide that
should the employee die whilst still in employment, any lump
sum is payable to the trustees of the scheme for them to apply the
monies in their absolute discretion. Therefore, the lump sum
benefit will not form part of the estate of the deceased, no grant
will be necessary, merely proof of death, and no Inheritance Tax
will be payable.
The property considered above, whether it does not pass to the
personal representatives, or to the estate at all, can represent a
considerable portion of value passing as a result of the death of
the deceased. It is the increase in the amount of property held as
beneficial joint tenant coupled with the growth in life assurance
and pension benefits which lead Professor Langbein to write in
the Harvard Law Journal about the ‘non-probate revolution’. That
is to say the value of property which can pass with the minimum
of formality (certainly not the formal requirements of the Wills
Act 1837) and not requiring a grant to the estate (97 Harvard Law
Journal, p 1108).
There are certain assets which my be paid out of the estate
without the production of a grant. Each item must not exceed
£5,000 in value. If this is exceeded, a grant may be required in
respect of the whole sum and not merely the excess. The provisions
are contained in the Administration of Estates (Small Payments)
Act 1965. Payment is made either to the person who would be
entitled to a grant if one were obtained or to the person beneficially
entitled; the only requirement is production of a death certificate.
The type of property to which these provisions apply are, for
example, monies in the National Savings Bank or National Savings
Certificates and Premium Savings Bonds.
In addition, the 1965 Act provides for monies payable in
respect of the wages, salary or superannuation benefits to civil
servants or service pensions to the police or fire service may be
payable on the production of a death certificate. Similar
provisions apply to funds invested in building society accounts
(Building Societies Act 1986).

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Where the amounts exceed £5,000 or there are other assets,

then a grant will be required. For example, the deceased may
have owned a small number of company shares, purchased
many years ago. The motive may not have been one of
investment but loyalty, for example, shares in a favourite
football club. The modest estate passes without production of a
grant and the share certificates are simply put with other family
papers and ignored. Some time later, they may acquire a more
significant monetary value when someone emerges keen to buy
the shares. In order to transfer them, a grant must be obtained
to the estate of the deceased holder of the shares. If a grant is not
obtained and the company allows transfer, say, on proof of
death, only the company could be constituted an executor de son
tort, however innocently it may have acted; see New York
Breweries v AG (1899).
Where the estate is low in value, it may be exempted from the
requirement to complete an Inland Revenue Account. In other
circumstances and, in particular, where the estate exceeds the
Inheritance Tax nil-rate band, the personal representatives have
to complete an IHT 200 form setting out the values of assets,
liabilities and chargeable transfers. Once this has been
completed, they make a self-assessment of the amount of
Inheritance Tax due and must pay at least that relating to non-
instalment option property prior to a grant being issued. In
addition to the Inheritance Tax form, the personal
representative(s) must file the original will and any codicils
together with the executor’s or administrator’s oath. The oath
indicates the entitlement of the person applying for the grant
and includes the estimated gross value of the estate. The
person(s) completing the oath swear or affirm that they will
administer the estate according to law. It is this oath which gives
protection to the beneficiaries should they consider action
should be taken for maladministration.

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Question 35

Clem, a widower, died five months ago. By his will, he appointed

his former partner, Morgan, to be his sole executor and left the
entire estate to his daughter, Gemma, who survived him. In the
first four weeks following the death of Clem, Morgan arranged
the funeral, collected insurance monies on Clem’s life and paid
the funeral account. Since then, Morgan, who spends long periods
looking after business interests in New York, has done nothing
within the estate.
Last week, the Inland Revenue wrote to Gemma asking for the
reason for the delay in view of the size of the estate, which includes
extensive farmlands and a number of paintings including two
attributed to Turner.
Gemma seeks the advice of her uncle, Dan, Clem’s estranged
brother, who is the stage manager of a local theatre. Dan informs
her he will ‘sort things out’, and takes two valuable vases from
Clem’s farmhouse, which he sells to Nodder, an auctioneer friend.
Dan keeps the sale proceeds ‘to defray expenses’ and pays the
electricity and telephone bills relating to the farm out of the sale
of some grain stocks.
Advise Gemma.

Answer plan

Gemma would want to know how to expedite the administration

of the estate and, in particular, the rights she may have against
Morgan and Dan. As Morgan is the legally constituted executor
one has to consider liability as an executor. In the case of Dan, one
has to consider possible liability as an executor de son tort, and
finally whether Gemma could take over the administration of the
estate herself.

Answer

Morgan is the executor named in the will. The executor does not
have to formally accept office.1 The court will consider that the
office has been accepted if the person named as executor does

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some act which only a lawfully constituted personal

representative would do. This is to be contrasted with carrying
out acts of necessity such as arranging a funeral. Collecting
assets or paying debts is sufficient to amount to acceptance of
office (Re Stevenson (1897)) and it would therefore appear here
that by collecting the insurance monies and paying the funeral
account, Morgan has accepted office. Since nothing further has
been done to take out the grant of probate to the estate, Gemma
should be advised to issue citation against Morgan to compel
him to take out the grant (see, for example, Biggs’ Estate (1966)).
A personal representative is under a general statutory
obligation to administer the estate of the deceased in accordance
with law (s 9 of the Administration of Estates Act 1971). In
accepting office by his actions, Morgan will render himself liable
if he does not seek to obtain probate promptly. If a citation is
issued and Morgan fails to take action to obtain the grant having
received the citation, then he can be guilty of contempt of court.
The Court may use its general discretion to ‘pass over’
Morgan in favour of Gemma. If this occurs, Gemma could apply
for letters of administration with will annexed under r 20 of the
Non-Contentious Probate Rules 1987, provided she is of age. If
Gemma is under age but has reached the age of 16, she can
nominate somebody to apply for a grant on her behalf. Where
she is under 16, then an application to the court would be made
for an application to administer on her behalf; the grant, in
either case, being limited during her minority. If there is an
outstanding liability to taxation and the Inland Revenue
considers there has been unwarranted delay, then the Revenue
could apply to the official solicitor to obtain a grant ad colligenda
bona in order to expedite outstanding tax (see, for example, Re
Clore (1982)).
Whether Morgan continues with the administration of the estate
or a grant is issued with will annexed the lawful personal
representative should take action against Dan. Dan has no
authority under the will, but has taken it upon himself to deal
with the estate’s assets. Dan would therefore be constituted an
executor de son tort. Dan can be liable, however innocently he has
acted (see New York Breweries Co Ltd v AG (1899)),2 because the
person is constituted executor de son tort if he obtains estate property
or releases a debt without lawful authority (Sharland v Mildon
(1845)). This is to be contrasted with acts of necessity such as

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arranging a funeral or taking care of deceased life stock. These

acts of necessity or charity would not render a person liable as
executor de son tort. However, Dan has taken estate assets and has
acted in the way that a lawful representative would act. Dan will
be liable to the extent of the assets he has received (s 28 of the
Administration of Estates Act 1925). He can plead as a defence
that he has only done what the lawful representative would have
done in settling bona fide debts. If, however, he has sold the vases
to Nodder at an undervalue, then Dan would be liable to the estate
for the difference between sale proceeds and the full market value.
If Nodder reasonably believed that Dan had lawful authority to
sell the vases (for example, his suspicion may have been aroused
by a sale at an undervalue), then Dan’s action will bind the estate
(Mountford v Gibson (1804)).3
A personal representative is entitled to claim out of pocket
expenses from the estate. Additional expenses or costs cannot be
claimed unless there is a charging clause in the will or the
beneficiaries agree. Dan, as executor de son tort, would have to
account for the sale proceeds from the sale of the vases and could
only plead in defence of legitimately incurred expenses, that is,
expenses which the lawful personal representative would have
incurred. Provided that the electricity and telephone bills were
bona fide, then Dan can plead due receipt of these as a defence.
Dan cannot be compelled to take out a grant to the estate where
he is not entitled to a grant. There is a possibility, although there
are insufficient facts, that as Dan is Gemma’s uncle, he could
possibly be entitled to a grant of administration with will annexed
limited during Gemma’s minority if Gemma is under age.
Otherwise, Dan’s obligation is merely to account for the assets he
has received. He can be made to account to the lawful personal
representative and to the creditors. In addition, Dan could be liable
to the Inland Revenue for Inheritance Tax, due on any assets which
have come into his possession (ss 199 and 200 of the Inheritance
Tax Act 1984).

Notes

1 Compare acceptance of office with that of renunciation. Where

a person wishes to renounce the appointment as executor, this

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must be filed with the court and cannot be retracted without

the consent of the court; see r 37 of the Non-Contentious
Probate Rules 1987. The court will only consent to retraction
of a renunciation if it is in the interest of the estate (Re Gill
(1873)). Renunciation as executor does not preclude a person
from applying for a grant in another capacity, as for example,
a creditor to the estate, unless the court orders otherwise in
allowing the renunciation as executor.
2 In New York Breweries Co Ltd v AG (1899), the deceased died
domiciled in America but owned shares in an English company.
The American executors did not obtain a grant of probate in
England and had no intention of doing so. The English
company knew this was the case, but at the request of the
executors, the company registered the deceased’s shares in
the American executor’s names and paid the dividends to that.
The House of Lords held that the company had constituted
itself executor de son tort and was liable to pay the death duty
liability on the English estate.
3 In Mountford v Gibson (1804), the deceased had purchased, but
not paid for, goods which had been delivered to him. The
vendor asked the deceased’s widow, shortly after his death
for the return of the goods and she complied. The widow was
not the lawful personal representative and in returning the
goods she made herself liable as executrix de son tort. Letters of
administration were subsequently granted to another person
who sued the vendor. The vendor claimed that he was entitled
to regard the widow as the lawful personal representative.
The court held, however, that because the return of the goods
was an isolated act and the widow had done no other act which
would make her liable, the vendor had insufficient cause for
believing that she had the authority to act, therefore, the lawful
personal representative recovered the goods.

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Question 36

Explain the purpose and effect of the chain of representation.

Answer plan

This is a straightforward essay. The structure should consist of a

clear explanation of the chain of representation and its effect. One
should then consider the circumstances in which the chain of
representation could be broken which would then result in an
application for the grant of administration de bonis non.

Answer

The chain of representation is governed by s 7 of the

Administration of Estates Act 1925. The chain applies where a sole
or last surviving executor dies, before the completion of the
administration of an estate having himself appointed an executor.
The latter, on taking out a grant of probate in respect of the
executor’s estate, automatically becomes the executor of the
original testator.
Generally, the office of an executor is for life. If property falls
into the estate many years after the completion of the
administration, the executor is duty bound to deal with it. Where
the executor dies in office having taken out the grant of probate, s
7 provides that the duty is passed to his executor. Suppose, for
example, A is named executor to the will of T. A proves T’s will
and then dies, having appointed B to be his executor. Provided B
proves the will of A, B becomes executor by representation to the
estate of T. What happens where T appoints two executors, X and
Y? Suppose Y proves the will with power reserved for X to prove.
If Y dies before completing the administration of T’s estate having
appointed Z to be his executor, Z should cite X to determine
whether X wishes to prove the will of T. Z should use citation here
because should he become executor by representation to the estate
of T (by proving Y’s will), X could subsequently have him removed
when he, X, applies for probate to the estate of T. An executor
faced with the chain of representation, such as B in the first example

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above, cannot pick and choose between estates, so that where B

does prove A’s estate, he automatically becomes executor by
representation to the estate of T. If B does not want to administer
the estate of T but is entitled under some other capacity to
administer A’s estate, then B should consider renouncing the
appointment as executor and applying in another capacity, as
administrator, to administer the estate of A. This would be possible
with the court’s approval.
The purpose of the chain is to reduce delay in the administration
of estates and thereby reduce the expense. The chain, however,
can lead to complications and, in certain circumstances, can be
broken. Where the chain is broken so a gap occurs in the
administration of the estate, then those entitled under the Non-
Contentious Probate Rules 1987 have to apply to the court for a
grant de bonis non administratis. The chain will be broken where,
for example, the proving executor dies intestate or fails to appoint
an executor or where the executor so appointed fails to obtain
probate. The chain will also be broken where a general executor is
followed by an executor whose duty is limited to a part of the
estate. For example, suppose that A was T’s general executor but
B was executor only to a part of A’s estate as literary executor. In
this case, although B would prove as executor to the copyrights to
manuscripts of A’s estate, he would not become executor by
representation to the estate of A. However, where one had the
converse, a limited executor followed by a general executor, the
chain would apply.
The chain has been criticised. An alternative would be to have
similar powers as those held by trustees whereby the last surviving
trustee or even the personal representatives of the last surviving
trustee can appoint new trustees. However, the same rules do not
apply in the case of personal representatives, because of the
personal nature of the office of executor.

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Question 37

What do you understand by the term ‘devastavit’?

Answer plan

The word devastavit should be defined and then the main areas of
liability, namely misappropriation, maladministration and failure
to safeguard assets should be explained, together with reference
to authorities.

Answer

The personal representative is under a duty to gather in the

assets, value them, assess the lawful debts and pay them
together with any tax due on the estate and then distribute the
estate according to the will, rules of intestacy or a combination
of both. The term ‘devastavit’ refers to breach of trust by a
personal representative.
There are three main areas of liability within the heading
devastavit: misappropriation of assets; maladministration; and
failure to safeguard assets. Personal representatives can be liable
for misappropriation where, for example, they use estate assets
for personal use or enter into a collusive sale. Either way, they are
diminishing the value of the assets in the estate.
The general heading of maladministration divides into three
sub-areas, namely: misapplication of assets; unjustified
expenses; and a wasting of the assets in the estate. An example
of misapplication would be applying estate assets, albeit in good
faith, otherwise than in the order provided by the will or statute.
Personal representatives need to take great care in valuing the
assets and liabilities. If it appears likely that the assets may not
meet the liabilities, or the personal representatives are not sure,
then they should proceed with caution and administer the estate
as if it was insolvent. This means that the liabilities must be
categorised into specially preferred debts, ordinary debts and
deferred debts. If the personal representative pays an ordinary
creditor before a preferred creditor, then the personal

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representative could be personally liable for misapplication of

assets. The personal representative could plead as a defence that
he had no notice of the preferred creditor (Re Fluyder (1889)).
However, he cannot plead this defence if he had no notice of the
debt because he had not placed the statutory advertisement
required by s 27 of the Trustee Act 1925 (see Chelsea Waterworks
v Cowper (1795)).
Another example of maladministration would be incurring
unjustified expenses. A personal representative can be liable if,
for example, he incurs funeral expenses which are disproportionate
to the value of the estate. Although in this case, one would have
regard to any wishes expressed by the testator together with wishes
of the family, these must be balanced against the value of the estate
and avoid diminishing of the assets.
The personal representative would be liable for
maladministration if he has wasted assets in the estate. Examples
would include giving away an asset of value or paying debts which
he is not bound to pay because they are statute barred or the claim
may be spurious.
In Thompson v Thompson (1821), the asset was a leasehold
property which had a greater value than the rent payable. The
personal representative was held liable when he surrendered the
lease without consideration instead of selling the lease at a
premium. The converse would apply where the personal
representative failed to dispose of an uneconomic lease promptly,
for example, where the rent exceeds the value as a result of onerous
repairing covenants which the lease imposes on the landlord
(Rowley v Adams (1839)).
The final area of liability is where the personal representative
fails to safeguard assets. The duty of care of a personal
representative in dealing with the estate is low. His position is
akin to a gratuitous bailee and the personal representative
cannot be held liable for loss in the absence of evidence of wilful
default (Job v Job (1877)). So, for example, the personal
representative would not be liable if assets were lost in a
robbery. The burden of proof of loss by the personal
representative rests with the person alleging the loss. Liability
would result where, for example, the personal representative
failed to pay a debt promptly so the creditors sued. The personal
representative would be liable personally for any fees incurred
and interest on the debt. Also, where the personal representative

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is slow to act in recovering assets so that they become statute

barred, he could be liable for the loss in value of those assets.
Delay in obtaining probate can also render the personal
representative liable for devastavit (Re Stevenson (1897)) as, for
example, where there are company shares in the estate and
these cannot be dealt with until the grant has been obtained, so
that where the personal representative is slow in obtaining the
grant, the opportunity to participate in rights issues may be lost.
The object of the rules relating to devastavit is to keep the
value of the estate, after payment of proper debts and
administration expenses, as high as possible for the benefit of
both creditors and beneficiaries. By accepting office as personal
representative a person also becomes liable as a trustee. There
is therefore an overlap between devastavit and liability for
breach of trust. A failure to take reasonable care of assets would
render the personal representative liable both for devastavit and
breach of trust. The concept of breach of trust is, however,
wider; for example, the personal representative would be liable
if he makes an unauthorised profit from the estate even though
the estate itself does not suffer loss.
The acts of the co-representative will not make the other
representative liable unless their default resulted in their failure
to obtain the property into the joint control. Where personal
representatives or trustees appoint agents, for example, a
solicitor to apply for the grant or a surveyor to value property,
they are not liable for the default of the agent provided they
appointed the agent in good faith (s 23 of the Trustee Act 1925).
The will itself may include a clause restricting the liability of the
personal representatives to wilful wrongdoing. This will only
protect the personal representatives as against the beneficiaries
and will not affect the rights of the creditors of the estate at
death. The debt must be paid promptly. In Re Tankard (1942), Mr
Justice Uthwatt said that the personal representatives should
have special regard to debts which carry interest and the
personal representatives can be personally liable for any
unnecessary order for costs against the estate. The personal
representative can obtain protection against both creditors and
beneficiaries in applying to the court under s 61 of the Trustee
Act 1925. This section enables the court to grant relief where the
personal representative or trustee has acted in good faith,
reasonably, and ought fairly to be excused. Under this section,

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the court has the power but not the duty to grant relief. The
beneficiaries themselves may agree to absolve the personal
representative or trustee from blame; however, the beneficiary
must be sui juris and have full knowledge of the facts and must
not be subjected to any undue influence.
Where mismanagement or misappropriation is alleged, a person
who is interested in the estate may seek an order for an account.
In commencing court proceedings in contract or tort, creditors
must commence the action within six years of the cause of action
or within 12 years in the case of proceedings on a covenant.
Beneficiaries must commence an action within 12 years from the
date on which they became entitled and within six years to recover
arrears of interest. The time period can be extended where the
beneficiary had a future interest. The time period will not apply
where the facts have been concealed by the personal representative
by means of fraud.

Question 38

Martin died this year. His will contained the following dispositions:

• all his shares in Moonrock Limited (the family company) to

his sister, Alice, ‘subject to the payment thereof of all my just
debts’;
• the freehold farmhouse Whiteacre and the adjoining acreage
to his brother Bert;
• the residue to his trustee on trust for his nephews Henry and
Oliver in equal shares.

Oliver died a week before Martin. The remaining beneficiaries all

survive Martin.
The family company shares are believed to be worth £60,000.
There is other personality worth £40,000. Whiteacre is valued at
£160,000 and the adjoining fields at £200,000. Both are charged by
way of legal mortgage in the sum of £170,000. In addition, there
are general debts of £70,000.
Advise John, the executor, as to who should bear the burden of
the debts.

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Answer plan

This question is concerned with one of the most difficult areas in

the law of succession, namely the incidence or burden of debts.
Here there are two types of debt, namely the general debts and
the mortgage.
The approach should be to read the will and see if there is any
direction regarding the payment of the debts and then to consider
whether this direction alters the rules concerning the incidence of
debts. The gift of the freeholding would appear to be subject to
the mortgage by applying s 35 of the Administration of Estates
Act 1925, as there does not appear to be a direction to the contrary.
The next step is to consider the incidence of the general debts
and whether or not the direction varies the statutory order for the
payment of debts contained in s 34(3) of the Administration of
Estates Act 1925. If the direction does vary the order, then the gift
of shares will be primarily liable for the payment of the general
debts. However, it is given that the shares are worth £60,000,
whereas the general debts total £70,000. One has to consider
therefore the incidence of the remaining £10,000. This involves
considering application of the order in s 34(3) and consideration
of the case law on the general variation of the order.

Answer

In advising John who should bear the burden of the debts, one
should first look to the wording of the will to see whether there
are any clear directions as to the payment of debts. Where the will
is silent as to the payment of debts or is unclear, then payment is
governed, in the case of general debts, by the statutory order
contained in s 34(3) of the Administration of Estates Act 1925 and
as regards debts on property by s 35.
Bert is given a freehold farmhouse and adjoining acreage
which are both charged with a mortgage. There is no direction
in the gift as to any contrary intention regarding the payment of
the mortgage and one would therefore apply the provisions of
s 35 of the Administration of Estates Act 1925 to the gift. Section
35 makes the property itself primarily liable for the payment of
the debt. There is no personal liability on Bert to pay the debt

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(Syer v Gladstone (1885)), since the debt attaches to the property.

Here, the two properties, the farmhouse and the adjoining
acreage, are given to the one beneficiary and therefore the total
property, namely the farm and the adjoining fields, would bear
the burden of the single mortgage. Section 35 applies to
property which is charged ‘at the time of his death’. The effect
of this is that the section only applies to the extent of the debt
charged and not to other debts incurred in respect of the asset.
In Re Birmingham (1959), the testatrix contracted to buy a house,
but died before completion. The estate owned the equitable
interest in the property subject to the vendor’s lien for the
unpaid purchase money. A codicil gave the house to X, residue
to Y and Z. The court held that X took the property subject to
the discharge of the lien, but the legal cost of the purchase was
a simple contract debt to be borne by the residue.
The effect of s 35 can be negated by a contrary intention,
provided this is in writing. A simple direction in the will that the
debts are to be paid from the residue does not amount to a
contrary intention of the rule in s 35. To effect an express
contrary intention, one would have to refer to the property itself
and use some expression such as ‘free from debt’. The contrary
intention can also be indicated by implication.1 There does not
appear to be any direction to the contrary in the will of Martin.
The reference to the debts does not make specific reference to
Whiteacre. John would therefore be advised to inform Bert that
he could take Whiteacre and the acreage subject to the mortgage
debt. If Bert wished to retain the properties he would have to
take over the mortgage provided the mortgagees gave their
consent. Alternatively, the property or a part of the property
could be sold to pay off the mortgage and the balance of the sale
proceeds paid to Bert. The incidental costs incurred in disposal
would be a general debt, applying the principle in Re
Birmingham and not borne by Bert.
The advice as to the burden of the general debts again turns
upon a reading of the will coupled with the question of whether
or not the statutory order of the application of assets applies in
the payment of the debts. John should first arrange a provisional
categorisation of assets. The gift of the shares is a general legacy.
The gift of the freehold farmhouse Whiteacre is a specific devise
and the burden of the mortgage debt attaching to that property
has been considered above. The gift of the residue divides into

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two funds. Prima facie, Henry and Oliver are residuary

beneficiaries. The property has been given to them as tenants in
common. However, given that Oliver has died before Martin, his
share lapses and, in the absence of a gift over in the will,
becomes property undisposed of by the will. There are therefore
four categories of assets within this will, namely: general
legatee; specific devisee; residuary beneficiary (Henry); and the
share, which would have passed to Oliver, which is distributed
on a partial intestacy.
The burden of the general debts totalling £70,000 will depend
upon whether the statutory order contained in s 34(iii) of the
Administration of Estates Act 1925 applies or whether this order
has been varied by the words of the will.
The statutory order envisages that the assets be placed into
their respective categories, that is to say, the assets are
‘marshalled’. The debts are then paid out of the assets in the
order they appear in s 34(iii). The first four categories in the
statutory order are:

• property undisposed of by the will subject to the retention of

a fund to meet any pecuniary legacies;
• the residue disposed of by will subject to gain to a fund for the
pecuniary legacies;
• property the deceased specifically appropriated or devised or
bequeathed at the payment of debts; and
• property the deceased charged with or devised or bequeathed
subject to a charge for the payment of debts.

Does the will of Martin vary the order? An initial problem is that
categories 3 and 4 in the statutory order, properties specifically
devised or bequeathed, and property charged with the payment
of debts would, one would think, appear as categories 1 and 2 in
the order. This poses the question as to what it takes to vary the
statutory order. Any variation must be in writing and an expression
of contrary intention which is merely oral will not negate the order
(Perry v Hicknell (1982)). Where the direction is in writing, a mere
direction to pay debts will not in itself vary the order, because the
personal representatives have got to pay the debts in any event. A
mere appropriation or charging of property does not displace the
statutory order, because these are referred to in categories 3 and 4
in the order.

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Do the words following the gift of the shares to Alice vary the
statutory order? If the words are construed as a mere charging
of property, then the order in s 34(iii) is not displaced and the
debts would be paid following the order laid down in s 34(iii)
(Re Gordon (1940)).2 In order to affect a variation based upon a
direction, one would have to show that in using the words
‘subject to the payment thereof of all my just debts’, Martin has
shown that he wishes the debts to be paid out of the bequest and
has indicated an intention to exonerate the other property. The
intention to exonerate was held to apply following an automatic
gift of residue in Re James (1947)3 and applied in Re Meldrum
(1952), where the testator bequeathed to his daughter the money
in a bank account after the payment of legacies and debts and
left the residue of his property between his son and daughter.
Mr Justice Upjohn, applying Re James, held that the direction to
pay debts from the bank account showed an intention to
exonerate the residue. The difference here is that the residue has
been given to different people, whereas in Re Meldrum, the
daughter whose bequest of the bank account subject to debts
was also included as a residuary beneficiary. There is no clear
answer and it would be a matter of construction for the court to
determine whether the bequest of the shares is to be primarily
liable for the payment of debts.
If the conclusion is that the direction in the gift of the shares
does not vary the statutory order, then the general debts of £70,000
will be payable primarily out of the property passing on the partial
intestacy (‘the Oliver fund’) and the share of residue to Henry.
This will leave debts of £30,000, which will come out of the gift of
the shares and the specific devise of the farmhouse applying
category 6 in the statutory order. The debts will be borne ratably
according to the value of the respective gifts so the majority of the
remaining £30,000 would fall upon Bert and, to a lesser extent,
Alice.
If the construction follows the interpretation in Re James and
Re Meldrum, then the statutory order will have been varied and
the primary fund for the payment of the debts will be the gift
of the shares, thereby wiping out the gift to Alice. This will still
leave £10,000 of general debts. Where these are payable from
will depend again upon whether there has been a further
variation of the order. If the statutory order applies, then John
will have divided the residuary personalty into two funds, the

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‘Oliver fund’ and the ‘Henry fund’. Each fund would be worth
£20,000 and the burden of the balance of the general debts
would be payable out of the Oliver fund. How could this be
varied? The key to understanding the other line of authorities
on the variation of the statutory order regarding the payment of
debts lies in understanding the meaning of the expression
‘residuary property’. The ordinary meaning of the term
‘residuary property’ is that one takes what is left after paying all
expenses, debts, liabilities including taxation and a provision for
the legacies. However, the purpose of s 34 is to place the assets
in certain categories (that is, marshall them) with the intention
that the debts are to be borne out of those categories in
accordance with the statutory order (Re Sanger (1939)). The
order may be varied by the testator directing debts to be paid
from specified property as considered above. The alternative is
for the will to include a direction to pay debts in such a way that
the provisional categorisation of assets cannot be made until the
debts have been paid. In Re Kempthorne (1930), the testator left
all his property, after the payment of debts and legacies, to be
divided among his brothers and sisters. Two of them
predeceased him. At first instance, the court held that the
wording was a mere direction for debts to be paid and therefore
did not vary the statutory order. The Court of Appeal disagreed,
saying that by using the word ‘after’, the testator had shown an
intention that the debts should be paid before the residue was
ascertained. Similarly, where the testator left residuary property
‘subject to the payment of debts’ in Re Harland-Peck (1941), the
Court of Appeal held that the statutory order had been varied.4
This is also the case if, for example, the residue is given to
trustees who are directed to: (a) pay debts and expenses; and
then (b) hold the balance for the beneficiaries. Here, the express
words indicate that the debts should first be paid before the
residue is ascertainable.
If there is some direction in Martin’s will whereby the
provisional categorisation cannot be made before the debts are
paid then the order would be varied and the balance of the
debts, the £10,000, would come out of the residuary personalty
before division. This would leave a net £30,000 to be divided
equally between the Oliver fund and the Henry fund. The
decision as to the burden of the debts is important. Assuming
that the gift of shares does vary the order, then as regards the

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remaining £10,000, the Oliver fund would have to bear the

burden leaving Henry to take £20,000 as against £10,000 to the
Oliver fund. If, however, the order is varied, then each fund will
receive £15,000. There do not appear to be words of variation in
this case and, therefore, if the gift of the shares is to bear the
debts, then the balance of £10,000 would be payable out of the
Oliver fund passing on partial intestacy.

Notes

1 In Re Valpy (1906), there was a direction to pay all debts, except

a mortgage debt on a particular property, and this was held to
show an intention that all other mortgage debts should be paid
from residue.
2 In Re Gordon (1940), the testatrix by her will gave a specific
legacy, and a legacy of £5,000 with a direction to pay it from
her debts, and to pay over the balance to another. The residue
was undisposed of owing to the predecease of the beneficiary.
The court held that the statutory order was not displaced with
the result that the debts were paid from the undisposed of
residue, rather than the legacy set aside for this purpose. There
was no indication in the will of any intention to exonerate the
residue.
3 In Re James (1947), the testator directed payment of his debts
from a particular fund and left the residue to his wife. Mr
Justice Roxburgh said, ‘I should hold that the direction to pay
debts out of a particular fund necessarily involved an intention
to exonerate some other fund which the testator disposed of
in some other part of his will—in other words, necessarily
involved an intention to exonerate the residue of his estate
which he devised and bequeathed to his wife absolutely’. Here,
the judge was saying, that the intention appeared to come
automatically from the gift of the residue.
In Re Meldrum, Mr Justice Upjohn said in reference to Re
Gordon: ‘…as I understand Maugham J he is saying that, having
regard to the presence of paras 1 and 2 (in the statutory order)
an indication in the will that a particular piece of property is
to be charged with the payment of debts is not sufficient to
enable one to assume that the testator is intending to alter the

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order of application of assets, because, if that was so, one could

never give effect to these paragraphs even where there was a
partial intestacy bringing in para 1, or a gift of residue bringing
in para 2. I think that Roxburgh J recognises that in Re James.
Nevertheless, it seems to me to remain a question purely of
construction of each will whether or not the testator has varied
the order of application of assets or not.’
4 In Re Kempthorne (1930), the Court of Appeal had held that by
referring to the residue ‘after payment of expenses, debts and
legacies’, the testator intended that the debts should be paid
before the residue could be ascertained.
In Re Harland-Peck, the testator left his property ‘subject to
the payment of funeral and testamentary expenses and debts’.
The Court of Appeal held that these words charged the debts
on the whole residue and that they had to be discharged before
the division was made.
These problems can be avoided in practice by careful
drafting. A common provision in terms of the gift of the residue
is to start the gift by saying ‘subject to and after the payment
of funeral testamentary expenses, debts, death duties and
legacies I devise and bequeath the remainder of my property
whatsoever and wheresoever…’. This commonly used
provision is a combination of the wording in Re Kempthorne
and Re Harland-Peck. The effect of the clause is to prevent a
provisional categorisation until the debts have been paid. This
example also indicates that the categorisation cannot be made
until the legacies are paid, but that is another story.

Question 39

John, a widower, died in April. His estate consists of his freehold

property Greenacre, valued at £250,000, but subject to a mortgage
of £140,000; shares in ICI plc worth £50,000 and other personalty
worth £80,000. At death, John owed the Inland Revenue £80,000,
together with other general debts of £10,000. By his will, made in
1988, John appointed Edward and David to be his executors,
bequeathed the ICI plc shares to his son Ron, Greenacre to his
daughter Kate and the residue of his estate ‘after payment of all

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my debts of whatever kind’ to his sisters Alice and Beth in equal

shares.
In 1992, John wrote to his solicitor ‘If it can be arranged I want
Kate to have my home free from mortgage’. Alice died last year.
Advise Edward and David as to how the debt should be borne
as between the beneficiaries.

Answer plan

The question involves the distribution of assets within the case of

a solvent estate and the rules concerning the incidence or burden
of debts. The question involves consideration of s 35 of the
Administration of Estates Act 1925 and the statutory order for the
payment of debts and liabilities contained in s 34(3) and Pt II of
the First Schedule to the Administration of Estates Act.

Answer

Edward and David are under a duty to pay the debts as quickly
as possible. Failure to do so could render them liable for devastavit,
that is, maladministration. The executors must act with due
diligence (Re Tankard (1942)). Edward and David should first of
all calculate that the estate is solvent, that is to say, that the estate
assets can meet the debts. Where it is uncertain, then the executors
should administer the estate as if it were bankrupt. The danger is
if debts are paid in the wrong order, the executors could again be
personally liable for devastavit. In this case, however, the estate is
solvent. The funeral, testamentary and administration expenses
have the first claim on the estate.
The creditors will not be interested in how the debts are paid as
long as they are paid promptly. The problem lies in determining
the incidence or burden of debts and as to who, out of the
beneficiaries entitled to the estate, should bear the burden of the
debts.
The executors should look first of all to the will for directions
as to the payment of debts. If the will is unclear then resort must
be had to the statutory provisions contained in the Administration
of Estates Act.

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In the case of the mortgage debt, in the absence of a clear

direction to the contrary in the will, s 35(1) of the Administration
of Estates Act 1925 says that the freehold property on which the
mortgage is secured should tear the primary liability for the debt.
Prima facie, therefore, Kate would take Greenacre subject to the
mortgage. She would face either taking over the mortgage with
the permission of the mortgagees or seeing the property sold and
the mortgage debt paid off, thereby becoming entitled to the
balance. However, s 35(1) is subject to any contrary intention
indicated by the deceased ‘by will, deed or other document’. There
is no direction contained in the will. What is the effect of the letter
to John’s solicitor? The direction would have to be clear. In Re
Bingham (1959), the testatrix contracted to buy a house before her
death and wrote to her solicitors directing them to execute a codicil
leaving the house to her daughter ‘free of all duties’. The testatrix
died before completion and it was held that the property passed
to the daughter subject to the unpaid vendor’s lien. The direction
in the letter was held to be insufficient to lift the burden of the
debt from the inheritance.
In order to be effective, the direction should indicate who is to
bear the burden of the debt. Can one say that the residuary estate
should bear the burden by implication? The problem here is that
under s 35(1), a general direction to pay debts out of the testator’s
personal estate is not sufficient to indicate a contrary intention to
the general rule in s 35(1). It would appear, therefore, that Kate
would still have to bear the burden of the mortgage.
The general debts total £90,000. The Inland Revenue would not
have any prior priority concerning the debt of £80,000 because
the estate is solvent. In determining the burden of these general
debts, Edward and David must first look to see if there is any
direction which varies the application of the statutory order. If
there is no direction, then the statutory order in s 34(3) must be
applied. Does the direction ‘after payment of all my debts of
whatever kind’ throw the debts on the residue as a whole? This
depends upon the interpretation in Re Harland-Peck (1941)
(see below).
The statutory order in s 34(3) means that the executors must
place the assets in various categories. The first category is property
undisposed by the will. Whether there is property undisposed of
by the will will depend upon the terms of the gift of the residue. If
this is given to Alice and Beth as tenants in common, then Alice’s

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Q & A ON SUCCESSION

predecease will mean that her share will lapse and, in the absence
of a gift over in the will, becomes property undisposed of by the
will. If, however, the gift is to Alice and Beth as joint tenants, then
the surviving sister will take the whole of the residue. If there is a
lapsed share then the residue, the personalty worth £80,000 must
be divided: £40,000 to the Alice fund and £40,000 to the Beth fund.
The Alice fund would be primarily liable for the debts and then
resort would be made to the residue.
If the wording in the will is such that the assets cannot be
placed in their respective categories until the debts have been
paid, then the statutory order has been varied. It could be
argued that the words ‘after payment of all my debts of
whatever kind’ are sufficient, on the authority of Re Harland-
Peck, to vary the order in respect of the general debts. Section
35(1) requires Greenacre to be specifically exonerated of debt.
As this is not the case, the mortgage will be paid out of the value
of Greenacre leaving the other general debts of £90,000 to be
borne primarily by the residuary estate before division. In
practice, even if the residue was divided as to the Alice fund and
the Beth fund this would make little difference since the general
debts exceed the value of the residue. Whether the order is
varied depends upon applying either Re Harland-Peck or the
interpretation in Re Lamb (1929) that mere direction to pay debts
out of residue will not vary the statutory order as the executors
have got to do this in any event.
The Alice fund and the Beth fund will not, therefore, receive
anything and the remaining £10,000 in the balance of the general
debts will be paid out of the property specifically bequeathed;
namely the ICI plc shares which are left to Ron.

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Question 40

Advise in each of the following situations:

(a) Derek, who has just died, appointed Edward as executor in

his will. Edward had agreed to be Derek’s executor prior to
the execution of the will in 1989, but no longer wishes to act.
Advise him if he must do so.
(b) William has died intestate. His son Henry has said that he will
deal with the estate. William’s other relatives wish to know if
he is entitled to do so.
(c) Probate of the will of Reginald was granted to Simon, one of
the executors named in the will, power being reserved to
Thomas the other executor. Simon has recently died and
Victoria has obtained a grant of letters of administration of
his estate. Yvonne (15) is the sole beneficiary under Reginald’s
will. Who is entitled to deal with the administration of
Reginald’s estate?

Answer plan

This question deals with a series of practical points on the

administration of estates including the rules as to acceptance in
renunciation; the order of entitlement to a grant under r 22 of the
Non-Contentious Probate Rules 1987, r 20 of the Non-Contentious
Probate Rules and the grant of double probate.

Answer

(a) The office of executorship is the personal choice of the

testator. The office cannot be assigned (Re Skinner). However, an
executor cannot be compelled to accept office and is free to
renounce even where he has agreed to act as executor during the
testator’s lifetime. Edward could therefore file a renunciation
with the court. The only bar to this would be if Edward had
acted in the estate after Derek’s death in such a way that would
be deemed to be acceptance of office, for example, pursuing a
claim for a debt or taking possession of chattels for the purposes

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Q & A ON SUCCESSION

of valuation rather than mere safe custody. If Edward has done

such acts which would constitute acceptance, and still refuses to
take out probate, he could be deemed liable as an intermeddler
in the estate and notice served on him to take out a grant. If he
then refused, he could be constituted liable as an executor de son
tort to the extent of the value of the assets he has taken under
his control. He can plead in defence that he has properly dealt
with the assets.
Acts of necessity or humanity would not constitute a person an
executor de son tort; so, for example, if Edward had simply arranged
the funeral or taken certain chattels into possession purely for safe
custody, this would not, in itself, amount to an acceptance of office.
Edward must file his renunciation in writing to the Probate
Registry. In practice, this would be done by the persons
subsequently applying for a grant and at the same time lodging
Edward’s written renunciation.
(b) In the case of a person dying intestate, a grant of letters
of administration will issue. The order of entitlement to the
grant is set out in r 22 of the Non-Contentious Probate Rules
1987. The order of entitlement follows the beneficial order of
distribution on intestacy with the addition of creditors at the
end of the list. One administrator is sufficient unless there is a
minority interest in the estate or a limited interest, in which case,
the court will require at least two administrators to be
appointed.
The first person entitled under the order set out in r 22 would
be William’s spouse. If there is no surviving spouse then
entitlement passes to the next category, the issue. This would
include Henry, but there may be others entitled within the same
category; that is to say, any brothers or sisters of Henry or children
of any deceased brother or sister. All those within the same class
have an equal right to apply for the grant.
In order to apply for a grant, an applicant must have a beneficial
interest in the estate. If William did leave a surviving spouse, then
whether the issue would be entitled to benefit would depend upon
the size of the estate. If the estate is valued at £125,000 excluding
personal chattels, then the issue would not be entitled to benefit.
However, r 22(3) provides that a grant can be made to a person
who would be entitled to a beneficial interest in the estate if there
were an accretion to the estate, provided that any person with a
better right was cleared off. So, for example, if William’s surviving

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spouse did not wish to take out the grant, then those next in line,
including Henry, could do so.
(c) Where an executor has died having taken out the grant but
before completing the administration of the estate, then the
entitlement to the grant of probate would pass to Thomas where
power had been reserved to Thomas in the grant. The grant that
would issue to Thomas would be double probate. Thomas cannot
be forced to take the grant, but should be cited as to whether he
wishes to take out double probate or renounce. The chain of
representation under s 7 of the Administration of Estates Act 1925
cannot apply in the case of Simon’s estate, because he has died
intestate. If Thomas does renounce, it will be necessary for a grant
of letters of administration de bonis non administratis to issue to the
estate of Reginald. Entitlement to a grant to Reginald’s estate is
governed by r 20 of the Non-Contentious Probate Rules 1987.
Yvonne, as the sole beneficiary, would be entitled to a grant if she
was of age. Since she is a minor, letters of administration would
be issued on her behalf (minore aetate). In these circumstances, a
grant would normally be issued to Yvonne’s parent or guardian.
If Yvonne was aged 16, she could nominate someone to take out a
grant on her behalf. If the administration of the estate is not
completed by the time Yvonne attains the age of 18, then she can
apply for a cessate grant and for the grant of letters of
administration to be issued in her name.

Question 41

‘It is the responsibility of the personal representatives to pay the

just debts and liabilities of the deceased.’
Consider this duty with particular reference to the
administration of the insolvent estate.

Answer plan

This is a straightforward essay requiring a knowledge of the

classification of debts in the insolvent estate, distinguishing
between secured and unsecured debts.

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Answer

If the assets of the estate are insufficient to pay all the debts and
liabilities (including funeral, testamentary and administration
expenses), the estate is insolvent (s 421(4) of the Insolvency Act
1986). The debts must be paid in the order set out in the Insolvency
Act 1986 and the Administration of Insolvent Estates of Deceased
Persons Order SI 1986/1999.
In Re Palmer (Dec’d) (A Debtor) (1993), the court considered the
effect of an insolvency administration order upon property held
on a joint tenancy. The court held that the effect of the insolvency
administration was to vest the whole of the deceased’s assets in
the trustee as from the date of the bankruptcy. Further, since the
order was to be treated as having been made on the same day as,
but before the death, it was then held that the whole of the
deceased’s assets became vested in the trustee and a trust was
imposed on the deceased’s property for the benefit of his creditors.
The effect, therefore, was to sever the joint tenancy before the death.
The result was that the deceased’s beneficial share in the property
was available for his creditors. Vinelott J, in considering the new
insolvency legislation, was clear that the effect was to impose upon
the debtor’s property, at the time when the bankruptcy order was
made, a trust for the benefit of his creditors.
If a creditor has loaned monies to the deceased on the security
of property by way of mortgage, charge or lien, the usual course
of action would be to realise the security to meet the debt. In cases
where the security may be insufficient to meet the debt, other
courses of action can be considered:

(a) To realise the security and prove for the balance of the debt.
(b) To set a value on the security and prove for the balance. If, for
example, the creditor wishes to keep the property himself or,
to dispose of the property, as in (a) above, would involve high
costs.
(c) To surrender the security and prove for the whole of the debt.
This would be done where, for example, the security proves
to be worthless.

It is thought that the deceased’s reasonable funeral, testamentary

and administration expenses have priority over all other debts

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owed to unsecured creditors. It may be, however, that under the

new bankruptcy order, there are postponed to specially preferred
debts. Subject to that, the order is as follows:
(i) Specially preferred debts
• Where the deceased held money or property belonging to a
friendly society in the capacity of an officer of the society, such
monies take priority over all other unsecured debts listed
below.
• Proper expenses incurred by the trustee under a deed of
arrangement or by way of a voluntary arrangement under
the Insolvency Act 1986.
(ii) Preferred debts
These are listed under five categories:
• Debts due to the Inland Revenue
Pay-as-you-earn (PAYE) deductions owing in the 12 months
preceding the death where the deceased was an employer and
any sums due as a result of deductions from the pay of sub-
contractors in the construction industry.
• Debts due to the Customs and Excise
These include, inter alia, value added tax due in the six months
before the death and outstanding motor vehicle tax due in the
12 months before the death.
• Social security contributions
Sums due under Class 1 or Class 2 contributions under the
Social Security Act 1975 for the 12 months ending with the
death; sums assessed under Class 4.
• Contributions to occupational pension schemes
• Remuneration of employees
Wages outstanding for the four months before death to a
maximum (at present £800) and accrued holiday pay are the
main items under this head.
All categories of preferred debts rank equally as between
themselves. If the assets are insufficient to meet them, they
will abate proportionately according to value.

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(iii) Ordinary debts

All debts not falling within any other category. This category
will include moneys owed to the Inland Revenue and Customs
and Excise which exceed the preferred category debts.
(iv) Deferred debts
They are debts owed in respect of credit provided by a person
who was the spouse of the deceased at the latter’s death; it is
immaterial whether this was so at the time the credit was
provided.
The order of priority set out above cannot be varied by the
will of the deceased. Where a personal representative pays a
debt out of order he can be personally liable. If the personal
representative is in any doubt as to the solvency of the estate,
he should administer as if it were insolvent.

Question 42

The effect of the Administration of Estates Act 1925 has been to

produce lasting uncertainty as to the property out of which
pecuniary legacies are payable.’
Discuss.

Answer plan

This quote is inviting a discussion of the incidence or burden of

pecuniary legacies out of the solvent estate of the deceased. The
topic is complex involving a minefield of permutations. Professor
Mellows in the fourth edition of Mellows on Succession says that
prior to reading the appropriate section in the text, one should
place a cold towel over one’s head before proceeding.
The issue is whether or not the statutory order for the
application of assets in the payment of debts contained in s
34(iii) and Pt II of the First Schedule to the Administration of
Estate Act 1925 also applies in the payment of the pecuniary
legacies. The problem is when one reads the statutory order the
only reference to pecuniary legacies is in connection with the
retention of a fund for the payment of the pecuniary legacies

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mentioned in numbers 1 and 2 in the order in an attempt to

preserve the pecuniary legacies until certain other assets are
exhausted. The pecuniary legacy fund can only be resorted to in
category 5. Because there has been no clear reference to the
incidence of burdens of legacies, the cases have gone either way;
for example, Re Worthington itself supporting the idea that they
should not be treated differently but, against that, Re Thompson
(1936), followed by Re Wilson (1966).

Answer

The rules as to the incidents or burden of debts were changed

after 1925 by s 34(3) of the Administration of Estates Act 1925.
The pre-1926 legislation was based upon the preservation of real
property which passed to the heir of law. Section 34(3) makes both
the real and personal estate subject to the payment of funeral,
testamentary and administration expenses, debts and liabilities.
Personal representatives are required to make a provisional
categorisation of assets in accordance with the order laid down in
Pt II of Sched I to the Administration of Estates Act 1925. It is not
easy to determine whether the will has made a variation of this
statutory order as regards the payment of the debts. For example,
a mere appropriation of property for the payment for debts will
not vary the statutory order as an appropriation is category 3 in
the order after property undisposed of by the will and the residuary
estate. The difficulties faced by the court of construction are
compounded when it comes to considering the incidence or burden
of legacies. The difficulty is that there is no clear reference to
legacies in s 34(3), thereby making it uncertain whether they are
to be treated in the same way as the debts. The only direct
references are to the preservation of a fund for the payment of the
pecuniary legacies to be retained out of categories 1 and 2 in the
order, that is, property undisposed of by the will and the residuary
estate. The pecuniary legacy fund can only be resorted to in
category 5 of the order. The lack of a clear direction has left the
question uncertain as to whether the statutory order should be
applied in the payment of the legacies. If it is the case that a court
of construction thinks that the 1925 legislation does not apply, then
resort is had to the position before 1926.

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Before 1926, the legacies were payable out of the testator’s

general personal estate, that is, those parts of the estate not
otherwise specifically devised or bequeathed, Robertson v
Broadbent (1883), there was no distinction in the general personal
estate between that which was undisposed of and residue. Both
were liable rateably for the payment of the legacies. The purpose
of the pre-1926 legislation was in effect to ‘ring fence’ the realty.
If the general personal estate proved insufficient, the legacies
abated proportionately and, in general, the realty was exempt.
Realty could only be resorted to in exceptional circumstances.
For example, the testator might make a unitary gift of realty
and personalty. This would raise a presumption of the intention
that the residuary realty could be resorted to after the residuary
personalty had been exhausted, Greville v Browne (1859). If the
residuary personalty and realty were given together and the
testator added an express direction that the fund was to be
subject to the payment of pecuniary legacies, then the legacies
were paid from both the realty and personalty rateably, Roberts
v Walker (1830).1 Very exceptionally, the testator could provide
that the legacies should be paid out of realty in priority to
personalty, but to do this, the testator not only had to clearly
charge a specific fund of realty with payment of the legacies,
but had to show a clear intention to exonerate other property
(Elliott v Dearsley (1881)).
The failure to make any specific reference to the incidence of
pecuniary legacies in the 1925 legislation has left a number of
conflicting judicial decisions. In Re Worthington (1933), the
testatrix left a number of pecuniary legacies and then disposed
of the residue to two named beneficiaries, one of whom died
before her. At first instance, it was held that the legacies were
payable out of the general estate before categorisation of the
shares of the residue. On appeal, the Court of Appeal said that
the legacies were payable primarily out of the undisposed share
of residue; as regards the realty and personalty, this was to be
used rateably to meet the pecuniary legacies. Lord Hanworth
MR said that in the absence of a contrary indication in the will
itself, s 34(3) applied to the incidence of both debts and legacies.2
Re Lamb (1929) applied the statutory order to the payment of
legacies also, as did Re Gillett’s WT (1950); however, in Re
Thompson (1936), the court ruled that s 34(3) was meant to apply
to expenses, debts and liabilities alone; Mr Justice Clauson took

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this view on the basis that there was no direct mention of

legacies and he could see no grounds to suggest that the law had
been altered from the pre-1926 position.
Confusion has arisen because the incidence of debts has not
been clearly referred to in the Administration of Estates Act
1925. If the statutory order effected by s 34(3) is to be applied
then the assets have to be provisionally categorised into their
respective funds, including the pecuniary legacy fund, before
any debts and liabilities are paid. However, where there is a
lapsed share of residue, that is to say, property undisposed of by
the will (category 1 in the order) s 33(2) of the Administration
of Estates Act 1925 imposes a statutory trust for sale on the
undisposed of property. Section 33(2) contains a direction to the
personal representatives to pay off the debts and liabilities first
and only after this payment should the balance be used to
constitute a pecuniary legacy fund. In other words, there is a
direct clash between the terms of s 34(3) on provisional
categorisation of assets and s 33(2).
Section 33 applies to the situations where a statutory trust for
sale is imposed by s 33(1). This will occur, for example, where
there is a total intestacy and, by s 33(2), where there is a lapsed
share of residue devolving on a partial intestacy. In Re Worthington,
the court made the lapsed share of residue primarily liable for the
payment of legacies after debts and liabilities had been met and
did not draw any distinction between realty and personalty. Had
the pre-1926 rules been applied then, Greville v Browne would have
made the residuary personalty primarily liable for the payment
of legacies with residuary realty available only in the event of a
shortfall. Re Worthington therefore suggests that s 33(2) has altered
the pre-1926 situation, throwing the primary burden of legacies
on to property undisposed of by the will without differentiation
between realty and personalty. Certainly, this would accord with
the general thrust of the 1925 property legislation, albeit that it
would have helped if there had been a clearer reference to the
burden of legacies.
The problems have only just begun however for s 33 cannot
apply where the testator has created an express trust. Section 33
takes effect subject to the terms of the will; therefore, an express
trust would take priority. One cannot have to subsisting trusts
in respect of one and the same fund (Re McKee (1931)). Section
33 applies where the deceased dies not having fully disposed of

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his property by will. If therefore the deceased dies fully testate,

then s 33 cannot apply. What happens, therefore, if there is a
lapsed share of residue but the will contains an express trust? In
Re Beaumont’s WT (1950), the will contained an express trust for
sale, the court held that the pre-1926 rules applied and the
pecuniary legacies came out of a proportionate payment of both
realty and personalty and not out of the property undisposed of
by the will.3 The decision in Re Beaumont is supported by Re
Thompson (1936) and Re Anstead (1943).
Another line of authority has taken the view that s 34(3)
makes pecuniary legacies payable out of the property
undisposed of by will as far as possible. In Re Midgley (1955), the
will contained an express trust for sale but there was a lapsed
share of residue when the testatrix revoked a gift to one of the
six named beneficiaries. Mr Justice Harman held that the
legacies should be payable out of the lapsed share referring to
the obligation in paras 1 and 2 to retain a fund for the payment
of pecuniary legacies.4 Where the will imposes an express trust
for sale the case law has gone either way and is difficult if not
impossible to reconcile.
The final consideration is whether realty should be treated in
any way differently to personalty. One view is that realty and
personalty should be treated identically. The schedule uses the
word ‘property’ which is defined by s 55(l)(vii) of the
Administration of Estates Act 1925 as including any interest
whether real or personal. This approach was adopted in Re
Harland-Peck (1941). The alternative view is based upon the
position prior to 1926, when legacies were normally payable out
of personalty and, in the absence of a clear direction, the
schedule was not meant to alter the rules on the incidence of
legacies within a particular category of property. This view was
adopted in Re Anstead (1943) and Re Wilson (1967). The only
relief from this confusion is that where a statutory trust for sale
applies realty is converted into personalty rendering the
discrimination between the two classes of property unnecessary
(Re Martin (1955)).
It would certainly save a great deal of tortuous construction if
the view in Re Worthington prevailed, that is, that the statutory
order of application of assets should apply not only to debts, but
to legacies. However, the difficult path through the various cases
referred to above arises because the wording of the legislation is

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by no means clear. The draftsman should therefore take care when

it comes to the gift of the residuary estate to make sure that this is
not ascertained until not only the debts and liabilities have been
paid but to include also the payment of the legacies.

Notes

1 An example of the mixed fund such as in Roberts v Walker

would be where the residue of realty and personalty is left
upon trust for sale with a direction to pay the pecuniary
legacies from the fund.
2 In Re Worthington, Lord Hanworth MR referring to ss 33(2)
and 34(3) queried whether there should be a distinction
between debts on the one hand and legacies on the other.
Referring to the judgment at first instance of Mr Justice Bennet,
the Master of the Rolls said: The learned judge seems to have
read the will as providing for the payment of the legacies first
and to have thought that the residue was not be ascertained
until after they had been paid. But the provisions of the statute
indicate that unless there is some provision in the will which
negatives the prescribed order of administration, that order
of administration must apply to both legacies and debts. The
learned judge seems to have thought that because of the
specific reference to legacies in the will there was an indication
of an intention that the statutory order should not apply to
them. But, after all, if legacies are given by a will, there must
be a specific reference to them, and I do not see how that can
be sufficient to alter the statutory order of administration.’
3 In Re Beaumont’s WT, the testatrix left a number of pecuniary
legacies and then left a real and personal estate not otherwise
disposed of upon trust for sale, after payment of debts and
expenses, to four named persons. One of the named persons
predeceased the testatrix. Had the statutory order for the
payment of debts been varied? Where did the burden fall for
the payment of the pecuniary legacies? The court held that
the statutory order had been varied by the will, the pecuniary
legacies fund was to be set aside and the debts paid before the
division of the residue into four equal parts. However, in the
absence of a clear direction in the Administration of Estates

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Act 1925, Mr Justice Danckwerts held that the old law applied
to the payment of the pecuniary legacies citing in support the
decision in Re Thompson. He said ‘It seems to me…in the
present case the pecuniary legacies…are all payable out of the
whole estate before coming to what is divided into four equal
parts and given to four named persons, so that the lapsed share
is simply a lapsed share of the estate after those burdens have
been cleared.’
4 Mr Justice Harman in Re Midgley (1955), in holding that the
pecuniary legacies were payable primarily out of the property
in category 1 being property undisposed of by the will, said:
‘Therefore, one has first to retain out of the property
undisposed of a fund sufficient to meet any pecuniary legacies,
and one has to pay the debts, testamentary expenses and so
forth out of the rest of the undisposed of property. What is
one to do then with the fund that has been retained thereout?
The answer it seems to me, is that one must pay the pecuniary
legacies because it has been retained to meet them. It is, if I
may say so, a tortuous way of legislation, but that is what I
should have thought it inevitably meant and so, indeed,
Danckwerts J concluded recently in Re Martin (1955). It is quite
true that in that case there was undisposed of real estate, and
no trust for sale which applied to it. Any trust for sale would
have failed because of the failure of the gift.’
In Re Martin, the testator bequeathed two pecuniary legacies
and then left all his real estate to his daughter. There then
followed the gift of the residue of the personal estate to trustee
on trust for sale with a direction to pay all debts and expenses
and divide the balance among named beneficiaries. The
testator subsequently revoked the gift of real estate to his
daughter, but did not make any further disposition of the
property; therefore, it was under disposed of at death and fell
within para 1 of the statutory order. Did the pecuniary legacies
fund come out of the undisposed of realty in para 1 or out of
the residuary personalty in para 2? Mr Justice Danckwerts held
that the pecuniary legacies fund should be retained out of the
realty out of para 1. He said: ‘It seems to me that here I am
dealing simply with one asset, the undisposed of real estate
and out of that undisposed of real estate a fund is to be raised
to provide for the pecuniary legacies and if the fund is not to
be raised for the payment of the pecuniary legacies, it is

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difficult to see what reason there is for setting aside the fund.
Therefore, I am necessarily driven to the conclusion…the
proper fund to meet the legacies in the present case is the
undisposed of property.’
Mr Justice Danckwerts drew a distinction between the
situation in Re Martin and the decision of Mr Justice Clauson
in Re Thompson. He said that in the Thompson case, there was
no question of an intestacy. There was a common fund
comprised of real and personal estate and there was no
direction in the will as to how the legacies were to be borne,
that is, whether the Administration of Estates Act 1925 threw
the burden on the legacies rateably between real and personal
property or whether the pre-1926 law applied. It was held in
Thompson that as regards the primary fund for the payment of
legacies, the law had not been altered; therefore, the personal
estate must bear the primary liabilities. Mr Justice Danckwerts
pointed that in Thompson, the judge was dealing with an
interpretation of para 2, whereas in Re Martin, the lapsed share
brought into play para 1 which, it was held, applied in
the case.

Question 43
Discuss the liability of a solicitor to persons other than the testator
on being given instructions for and on drafting a will.

Answer plan

This straightforward essay question invites a review of the

authorities following the leading decision in Ross v Caunters (1979),
which established that a solicitor had a duty in tort not only to the
testator, but also to potential beneficiaries.

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Answer

It is clear that a when a solicitor is requested by a client to draft a

will, he owes a duty to that client, but can the same be said of the
persons that client is trying to benefit? In Ross v Caunters (1979),
the defendant solicitors drafted a will containing a gift to an
identified third person, X. They sent the will to the testator for
execution and included instructions on the procedure to be used.
The instruction dealt with all the points in s 9 of the Wills Act 1837
but omitted any reference to the provisions of s 15. X’s spouse
was a witness—a fact that went unnoticed by the solicitors when
the will was returned to them. When the testator died, the problem
was discovered and X lost the benefit of the gift. The solicitors
admitted negligence, but claimed not to be under any duty to X.
The Court disagreed and found them liable. Sir Robert Megarry
VC held that a duty existed not only to the testator, but to those to
whom the testator was purporting to give something.
The lead contained in Ross v Caunters was followed in Kecskemeti
v Rubens Rabin & Co (1992) and possibly extended in the later
House of Lords decision in White v Jones (1995). In that case, the
testator instructed solicitors to draft a new will including gifts to
his two daughters. The instructions were received in July, but
nothing was done until September, when a visit was arranged for
the 17th; however, the testator died on the 14th. The daughters
claimed that the solicitors owed them a duty of care and although
the court of first instance found that no duty was owed, the
decision was reversed by the Court of Appeal, whose view was
endorsed by the majority in the House of Lords. The majority view
is that under an extension of the principle in Hedley Byrne v Heller
(1961), the assumption of responsibility by the solicitor towards
his client should be held to be extended to the intended beneficiary
who, as the solicitor could reasonably foresee, might, as a result
of the solicitor’s negligence, be deprived of his intended legacy in
circumstances in which neither the testator nor his estate would
have a remedy. Lord Browne-Wilkinson added that a solicitor, by
accepting instructions to draft a will, comes into a special
relationship with anyone intended to benefit under it.
Recently, in Carr-Glynn v Frearsons (1998), the testator instructed
solicitors to amend his will to include a gift of land to his niece. At
the time he made the will, the land was held by the testator and

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his nephew as joint tenants. The joint tenancy was not severed
and thus on the testator’s death, the right of survivorship operated
and the gift to the niece failed. The court held that under the
principles of Ross v Caunters and White v Jones, the solicitors were
liable. They had known that the land was held by way of a joint
tenancy and that service of a notice of severance was part of the
will-making process. Their assumption of responsibility towards
a client extended to beneficiaries who suffer loss as a result of
their negligence.
Although the duties owed by the solicitor are extensive, they
do have their limits. In Clarke v Bruce Lance & Co (1988), solicitors
prepared a will including a devise of land to the testator’s son.
The solicitors then acted for the testator in relation to a lease of
the land and later on the grant to the tenant of an option to
purchase. The exercise of this option defeated the gift to the son
by ademption and, as a result, the son took action against the
solicitors. The court found that there was a conflict of interest
between the interests of the son and those of the testator. In those
circumstances, the solicitor’s primary duty was to the testator and
thus the son’s claim failed.
A similar decision was given in the case of Walker v Geo H
Medlicott & Son (1999). Here, the testator’s written instructions for
a will included the gift of a house to W. The solicitors wrote down
the testator’s verbal instructions, which differed from the written
ones in that they did not include such a gift of the house. The
court distinguished the case of White v Jones, as it did not concern
an allegation that the solicitors had been negligent in failing to
draw up a will and, in that case, the only remedy available to the
disappointed beneficiary was an action in negligence. It was held
that there was no convincing evidence that the solicitors should
have included the gift of the house to W and, in any event, a
disappointed beneficiary was expected to mitigate his loss by
bringing an action for rectification either as a result of a clerical
error or a failure to understand the testator’s instructions.

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Question 44

Advise each of the following:

(a) Jake, who is the executor of Christine’s estate. He is ready to

distribute the estate, but is concerned that he may not know
of all of the claims against the estate.
(b) Connie, who is the executrix of Frank’s estate. She has settled
all liabilities of the estate apart from one debt which is still the
subject of legal proceedings. Until the proceedings are
resolved, she does not know the exact amount of the debt.
(c) Kevin, who is the executor of Maxwell’s estate. In his will made
in 1990, Maxwell provided that his estate should be divided
amongst ‘my children’. Kevin completed the administration
and distributed the estate amongst Maxwell’s four legitimate
children. A fifth, illegitimate child, lan, has now made a claim
for a share in the estate.

Answer plan

This question requires an understanding of the statutory

protections of personal representatives and the ability to apply
the rules to the practical situations and, in particular, the use of
the statutory protection afforded to personal representatives under
s 27 of the Trustee Act 1925 regarding claims by creditors to the
estate.

Answer

(a) In many cases, it would be impractical for personal

representatives to know of all possible claims that there may be
against a deceased person’s estate. In order that the personal
representative can be protected and the distribution of the estate
be expedited, s 27 of the Trustee Act 1925 provides that so long as
the personal representatives place an advertisement in the
statutory form giving notice of claims against the estate to be made
not less than two months from the date of the notice, the personal
representatives will be protected in any future distribution of

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assets. The notice must be published in the London Gazette, in a

newspaper circulating in the district in which the land in the estate
is situated, and by giving such other notices as would have been
directed by the court. This would depend upon the size of the
estate and the nature of the deceased’s business. It may be
necessary, for example, to file notices in newspapers abroad where
the deceased had business interests or holdings overseas. Provided
the notice is given in the correct form, Jake would be protected in
any future claim by a creditor outside of the period stated in the
notice. However, Jake could not plead lack of notice if he had failed,
or failed within the correct minimum time, to file the correct
notices. In such a case, Jake could be liable for devastavit, that is to
say, a misapplication or maladministration of estate assets. In such
a case, Jake would be personally liable and would not be entitled
to an indemnity from the estate.
Section 27(2) requires that Jake should undertake searches or
obtain official certificates of search similar to those to which an
intending purchaser would be advised to make or obtain. These
would include, for example, Land Charges Registry Searches.
Provided the correct notices and steps have been taken, Jake
will be free to distribute the estate. If a creditor subsequently comes
forward and proves his claim, then the creditor could proceed
against the beneficiaries.
(b) Filing a s 27 of the Trustee Act notice will not protect a
personal representative where the personal representative knows
of a specific claim. In these circumstances, Connie could not
therefore claim the protection of s 27 and simply distribute the
balance of the estate. In order to expedite distribution, she should
set aside a fund sufficient to meet the claim and any likely costs
(she should be careful to set this figure on the conservative side to
avoid the possibility of any shortfall) and pay the balance of the
estate funds to the beneficiaries. Any excess once the debt has been
resolved could then be paid to the beneficiaries. An alternative,
though less attractive possibility, is to distribute the whole of the
estate and take an indemnity from the beneficiaries that they will
agree to pay the amount of the debt once it is fixed. The risk here
is that the beneficiaries may not have the resources when the debt
is finally resolved and the indemnities in such a case would prove
to be worthless. Insurance against such a possibility could be
considered, but because of the risk factor, the premium is likely to
be high and this would only add to the costs of the estate. By far

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the best course of action is to retain funds from the estate to meet
the potential liability.
(c) The Family Law Reform Act 1987 removed all barriers
regarding illegitimacy and relations. Section 20 of the Act
removed the previous protection given to personal
representatives in respect of illegitimate children. Where the
estate is distributed without regard to the possibility of an
illegitimate child, the personal representative could be
personally liable to that child. In order to obtain protection,
Kevin should ensure that the statutory notices under s 27 are
filed. Once time limits have expired, Kevin would be free to
distribute the estate amongst the children of which he is aware.
When the fifth illegitimate child becomes known, that child
would then have recourse against the other children for his or
her share, but Kevin would be protected against personal
liability.

Question 45

When a personal representative assents to certain property passing

in accordance with the terms of the will or intestacy, he is indicating
that he no longer needs the property for the purposes of the
administration and the property can pass to the beneficiary. How
is the assent made?

Answer plan

This essay requires a knowledge of the effects of an assent and the

problems that can arise where the personal representative does
not execute an assent in the course of the final distribution of the
assets.

Answer

There is no set form as to how the assent is to be made. The personal

representative can indicate orally, in writing or by conduct that

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the asset is no longer required for the administration (see

Attenborough v Solomon (1913)).
The transfer of property does not occur by reason of the assent
but by virtue of the dispositions in the will. The assent merely
makes the dispositions operative.
The effect of the assent of personalty:

(a) The gift relates back to death; therefore, the beneficiary has
the right to the income and profits arising from the death.
The assent is operative in respect of the legacy and not the
legatee. The significance is that in a situation where the
legacy has been given to the wrong person (for example, a
later will is found altering the destination of the gift), the
assent perfects the title to the rightful legatee from the
death. This is illustrated by Re West (1913), where the
executors assented to the person named in a codicil. A later
codicil was subsequently discovered bequeathing the legacy
to a different person. The beneficiary under the later codicil
successfully sued. The fact that the assent had been made to
the wrong person made no difference, for the assent was to
the bequest and not the beneficiary.
(b) The assent vests the property in the beneficiary and he
becomes responsible for it thereafter. A consequence is that
any costs of transport or packaging of the chattel, together
with insurance in transferring the asset must be born by the
beneficiary; for example, in a delivery of china in Re
Sivewright (1922).
(c) Re West (above) shows that the beneficiary is entitled to take
legal proceedings for the recovery of the chattel. However,
this right only exists in respect of specific gifts and not in the
case of general or residuary legacies.

Title to the property passes when the assent is made. In the case
of a chattel, such as a painting, title will pass immediately. In the
case of a chose in action, shares in a limited company, for example,
the personal representatives become trustees for the beneficiary
where it is necessary to comply with other requirements of the
transfer. For example, in the case of company shares, the title will
only pass to the beneficiary when his name is entered upon the
share register (Re Grosvenor (1916)).

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Section 36 of the Administration of Estates Act 1925 governs

assents to land and applies to estates or interests in real estate
which devolve on the personal representatives. If land is conveyed
to the personal representatives after the death, for example, where
the deceased died between contract and completion of the
purchase, then an assent will not suffice and the land will have to
be transferred to the personal representatives by deed (Re Stirrup’s
Contract (1961)).
The main circumstances in which an assent can be used are:

• to transfer the legal estate to a beneficiary in accordance with

the terms of the will;
• to transfer the legal estate to trustees under the terms of the
will;
• where a beneficiary has survived but the testator died before
an assent could be made in his favour, an assent can be made
to his personal representatives;
• where a beneficiary has predeceased the testator but the devise
does not fail, an assent can be made to his personal
representatives (for example, where s 33 of the Wills Act 1837
applies);
• where the deceased contracted to sell realty before his death
but had not conveyed the property to the purchaser, the
personal representative may make an assent to the purchaser.

The assent must be in writing, signed by the personal

representatives and must name the party in whose favour the
assent is effected (s 36(4)). Prior to 1964, conveyancing
practitioners thought that the provisions of s 36(4) did not apply
where the personal representative and the beneficiary were the
same person, because there was no ‘passing’ of the legal estate,
merely a change in the capacity in which the estate was held.
However, this view was held to be incorrect by the court in Re
King’s WT (1964).
The assent operates to vest the legal estate in favour of the
person named in the assent. Section 36 contains provision
designed to protect the purchaser in whose favour an assent is
made. If the personal representatives have to sell realty in the
course of the administration of the estate, they are likely to use
an assent to effect the transfer in order to save stamp duty on
the transaction. In the case of a purchaser for money or money’s

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worth, s 36(7) gives protection by providing that an assent is

sufficient evidence of title unless notice has been placed or
annexed to the probate or letters of administration.
Section 36(5) is intended to protect beneficiaries and entitles
them to require the personal representatives to enter a notice of
the assent upon the probate or letters of administration at the
expense of the estate. This gives protection to the beneficiaries if
the personal representatives subsequently try to sell the property
to another. In such a case, the purchasing party would not have
the protection afforded by s 36(7). On the other hand, if the
beneficiaries have not insisted upon a s 36(5) notice, they will not
be protected against a subsequent sale.
If the personal representative is slow to make the assent, then
the beneficiary can apply to the court of directions under s 43(2)
of the Administration of Estates Act 1925.
Where a beneficiary has been left a large general legacy, it
may be expensive for the personal representatives to sell off
estate assets to provide the legacy. Section 41 of the
Administration of Estates Act 1925 gives the personal
representatives power to appropriate any part of the real or
personal estate towards satisfaction of any legacy or other
interest in property given by the deceased.
The appropriate must not prejudice any specific gift. A personal
representative could not appropriate a specific legacy in
satisfaction of a pecuniary legacy.
Section 41(1)(ii) provides that where the beneficiary is
absolutely entitled to the gift, he must give his consent before
appropriation can be effected. Where the interest is settled,
consent must be obtained from the trustee or person entitled to
the income.
If the person who should give consent is incapable through
being under age or a mental patient, then consent can be given by
a parent, guardian, friend or the court.
The personal representative must employ a qualified valuer to
value the property which is to be the subject of the appropriation.
The time of value is the date of appropriation and not the date of
death (s 41(3)).
Once the appropriation has been made, it becomes in effect the
substitute for the gift in the will. It binds all those interested in the
property whose consents were not necessary. A subsequent
purchaser from a beneficiary who has received the property as

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the result of an appropriation is protected for s 41 deems all

requisite consents to have been obtained.
The power to appropriate in s 41 can be modified or even
excluded by the provision of the will.

Question 46

Under what circumstances is a general legatee entitled to interest

on the legacy?

Answer plan

This is a straightforward essay on the rules concerning the payment

of interest on legacies.

Answer
A general legacy carries interest from the time it is payable. The
time for payment may be fixed by the testator in his will, for
example, by directing that the interest be paid immediately
following the death. However, if no time for payment is stated,
then the time for payment of a general legacy is fixed by law.
The normal rule is that an immediate legacy, for example, ‘£2,000
to my brother Henry’ is payable one year after the testator’s death,
that is, the end of the executor’s year. If the legacy has not been
paid by the time the year expires, interest will then become
changeable, until such time as the legacy is paid. If, after that date,
there is a part payment on account, this sum is treated as being
made first in respect of arrears of interest (unless the will directs
otherwise) (see Re Morley’s Estate (1937)).
A contingent or deferred legacy carries interest from the time
at which it becomes payable, for example, £3,000 to Paul provided
he attains 18, only carries interest from the date of Paul’s 18th
birthday; where there is a direction in the will to sever the legacy,
then the legacy will carry interest from the end of the executor’s
year. For example, where the will leaves a general legacy to trustees
to hold the legacy and the investments representing it on trust for

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Alice provided she attains 18, interest is payable from the end of
the executor’s year.
There are four situations where, exceptionally, a general legacy
carries interest from the date of death of the testator; firstly, where
the legacy is given in satisfaction of a debt (see, for example, Re
Rattenbury (1906)). However, the will may direct a later time for
the payment of interest. The second exception is where the legacy
is charged only on realty, provided the legacy is vested. However,
the normal rule applies where the will directs the legacy to be
paid from the proceeds of sale of realty devised upon trust for
sale (Turner v Buck (1874)).
The third exception is where the testator gives a legacy to his
infant child or to an infant to whom he stands in loco parentis.
Here the legacy carries interest from the date of death in order
to provide maintenance for the child, for example, Re Bowlby
(1904). This rule does not apply where the will has made other
provision for the maintenance of the child, nor does it apply
where the legacy is given to trustees upon trust for the child (Re
Pollock (1943)). The instances where this rule would apply will
therefore be rare where the modern, professionally drawn will
usually includes gifts to trustees on behalf of the child. The rate
of interest in this case is 5% per annum, provided there is
sufficient income.
The fourth exception is where a legacy is given to an infant and
the testator, by his will, shows an intention to provide for the
infant’s maintenance or education (Re Selby-Walker (1949)). Here,
the legatee need not be a child or quasi-child of the testator,
provided the legatee is an infant.
Where by his will the testator gives a legacy to his nephew
provided he attains 18, then interest is payable once the nephew
attains 18 (Re Raine (1929)). Interest in this case would be
payable from the end of the executor’s year if the legacy had
been severed from the general estate for some purpose
connected with the legacy. The legacy would carry interest from
the death of the testator if the testator stood in loco parentis to the
nephew. Unless the will made some other provision for the
maintenance of the nephew. Given the complexity of these rules
in relation to infants, it is good practice to include in the will a
clear direction as to the time of payment of interest on the
legacy.

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Question 47

What rights, if any, do beneficiaries have to the assets of the

deceased pending distribution?

Answer plan

This question addresses the rights of the beneficiaries prior to the

completion of the administration of the estate.

Answer

Prior to distribution of the assets to the beneficiaries under the

will or intestacy, the personal representatives hold the assets on
a limited trust. As a general rule, a beneficiary under a will or
intestacy has no legal or equitable proprietary interest in the
unadministered assets of the deceased’s estate (see the decision
of the Privy Council in Commissioners of Stamp Duties v
Livingstone (1965)). Ownership of the unadministered assets is
in the hands of the personal representatives. Viscount Radcliffe
in Livingstone said:

…whatever property came to the executor by virtue of his office

came to him in full ownership, without distinction between legal and
equitable interests… He held it for the purposes of carrying out the
functions and duties of administration, not for his own benefit…
Certainly, therefore, he was in a fiduciary position with regard to the
assets that came to him in the right of his office, and for certain
purposes and in some aspects he was treated by the court as a
trustee.

Although Viscount Radcliffe refers to a ‘fiduciary position’, equity

does not treat the unadministered assets as if they constituted a
trust fund held upon trust for the beneficiaries.
The trust is limited in scope. It does not as a general rule
give the beneficiaries an equitable interest in their entitlement
in the same way as a beneficiary under an express trust has
an equitable interest. The reason is that the personal representatives

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held the estate not merely for the benefit of the beneficiaries, but
also to ensure due payment of debts to creditors until the
administration is complete; no one is in a position to say what
terms of property would need to be realised for the purposes of
the administration.
Pending distribution the beneficiary has a chose in action to
ensure that the estate is properly administered (Livingstone,
applied in Re K (Dec’d) (1985)). The chose is assignable to the
beneficiary in the same way as any other chose in action (Re
Leigh’s Will Trusts (1970)).
The nature of the residuary beneficiary’s interest in the
unadministered estate has been considered in Crowden v
Aldridge (1993). The residuary beneficiaries agreed to increase
the amount of a legacy to the testator’s housekeeper. The
memorandum directed to the executors, was intended to take
effect as a binding variation of the will. Later, one of the
residuary beneficiaries refused to sign the deed which had been
prepared to formally effect the variation. If all the residuary
beneficiaries had signed the deed, this would have been
effective to vary the executors’ obligations to administer the
estate. However, the variation did not take effect because one
residuary beneficiary had a change of mind, what was the
interest of the residuary beneficiaries in the estate? Applying
Livingstone, when they signed the memorandum, they had no
defined interest in the unadministered estate. If, however, they
had all signed the deed, this would have amounted to an
effective variation of the will. The beneficiaries had a right, in
the nature of a chose in action, enforceable in equity, to compel
the executors to carry out their obligations even though they
had no beneficial interest in the estate. A beneficiary could, for
example, transfer his right under the will to another by formal
assignment, notwithstanding that they did not yet have any
equitable interest in the estate (see the Court of Appeal in Gray
v IRE (1950)). However, there had been no formal assignment in
Crowden. The memorandum was merely evidence of any
intention to benefit the housekeeper by subsequently executing
a deed of variation. The single change of heart by one
beneficiary prior to the execution of the deed was sufficient to
deny the housekeeper the increase in legacy.
A possible exception concerning ownership of the
unadministered estate is in relation to a beneficiary entitled

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under a specific bequest or devise. Authorities suggest that the

specific legatee or devisee takes an equitable interest in the
subject matter of the gift at the death of the testator (see Re Neeld
(1962) and Re K (1985)). The legal estate vests in the personal
representative and the personal representative cannot be
prevented from resorting to the specific gift for the payment of
expenses, debts and liabilities. However, this exception does
appear to run contrary to the dicta in Livingstone, where the
court stated that the property in the estate comes to the personal
representative by virtue of his office without distinction
between legal and equitable interests. If Livingstone is applied to
all interests then the specific legatee or devisee would, like any
other beneficiary, only have a chose in action to have the estate
properly administered.

Question 48

What action may a creditor or beneficiary take where he or she is

dissatisfied with the administration of the estate?

Answer plan

In the majority of cases, the administration of the estate of a

deceased proceeds smoothly from consideration of the terms of
the will or rules of intestacy to the final distribution of assets to
the beneficiaries. There may be instances, however, where the
personal representatives need to seek the guidance of the court as
to the validity or meaning of the will or the beneficiaries wish to
call the personal representatives to account. Resort will therefore
be made to the court for assistance. Problems and situations where
personal representatives, beneficiaries or creditors can resort to
the court for a remedy will be considered.

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Answer

Any person interested in the estate may issue proceedings for

administration by the court. The applicant may be, inter alia, a
personal representative, beneficiary or creditor. Application would
be to the Chancery Division of the High Court under s 61 of the
Supreme Court Act 1981. There must be a duly constituted
personal representative before the court would consider taking
the administration. The reason is that there must be a defendant
to the proceedings. This person cannot be an executor de son tort
because his duty is not to administer the estate, merely to account
for what he has received.
If no grant of administration has been made, creditors and
beneficiaries interested in the estate may apply to the court for
the appointment of a receiver to protect the estate pending the
appointment of a personal representative. If there are proceedings
pending in the estate, a better course of action is to apply for the
appointment of an administrator pending suit under s 117 of the
Supreme Court Act 1981.
Administration by the court is expensive and the court will
not make an order unless it considers it absolutely necessary. An
example would be if the deceased had died bankrupt and it
appears that it would be a complex estate for the personal
representatives to administer, then, in the interests particularly
of the creditors, the court would take on the administration. In
many cases, application to the court to take on administration
will have been brought by creditors or beneficiaries by way of
calling the personal representatives to account, claiming they
have not acted properly and the court will make an order
against the personal representatives to account. The types of
orders include:

• an account of property not specifically devised or bequeathed

which has come into the hands of the personal representatives;
• an account of the debts, funeral and testamentary expenses;
• an account of legacies;
• an account of any property of the deceased which remains
outstanding.

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Apart from an order calling to account, the court could appoint a

person to act as a judicial trustee. He is an officer of the court who
can act with the personal representatives or alone.
A person considering applying for the court to administer
should heed the Limitation Act 1980. In the case of creditors, the
limitation period is six years for a debt due under a simple
contract; the period runs from the date the right accrued (s 5 of
the Limitation Act 1980). In the case of a judgment debt, the
period is 12 years from the date the judgment became
enforceable (s 24). The periods may be extended by
acknowledgment of the debt by the personal representatives,
either by part payment or in writing.
The personal representatives themselves may apply to the
court for specific relief, for example, on the meaning of a
particular clause in the will or on a summons for the court to
pronounce on the validity of the will. An example of the latter
is the privileged will case of Re Jones (1981), where the court was
asked to consider the validity of the words uttered to the
warrant officer.
If a personal representative commits a breach of duty whilst in
office he will be liable to the creditors or beneficiaries under the
principles of devastavit. The nature of devastavit and examples were
considered earlier in the chapter.
A personal representative is personally liable where devastavit
is proved. However, certain defences may be raised; certain of
these were considered earlier in the chapter, but can be summarised
as follows:

(a) The protection afforded by the s 27 of the Trustee Act 1925

notice.
(b) The discretion of the court under s 61 of the Trustee Act to
excuse a personal representative who has acted ‘honestly and
reasonably’. The onus rests with the personal representative
to establish that his conduct should be excused.
(c) Section 6 of the Trustee Act can order a personal representative
to be indemnified for loss where a beneficiary or creditor has
consented to the breach of duty.
(d) Where a beneficiary or creditor who is sui juris and with full
knowledge of the facts acquiesced in the breach, the onus of
proving acquiesence rests with the personal representative.

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The personal representative can protect himself by obtaining

a deed of release from the beneficiary for acts done in the course
of the administration of the estate, but this release is ineffectual
if it has been obtained fraudulently or with the application of
undue influence.
(e) The right to take action may be barred by the Limitation Act
(above).
(f) A personal representative may plead that he had duly
administered all the assets which have come into his hands
by entering the plea ‘plene administravit’.
(g) A modified form of the defence in (f) is to plead ‘plene
administravit praetor’, that is, he had duly administered the
assets which have come into his hands with the exception of
assets of a stated value which he still holds.
(h) Under s 48 of the Administration of Justice Act 1985, the
personal representative can plead that he has relied upon the
opinion of a barrister on any question as to the meaning or
interpretation of the will. The opinion must be written and
given by a barrister of at least 10 years’ standing. The opinion
cannot be acted upon until the court so orders and the court
will refuse where there are contentious issues which need to
be aired before the court.

Action against the personal representative will be the first court

of action by the creditor or beneficiary. However, the personal
representative may not have sufficient assets of his own to cover
the value of a claim. In that case the choices are:

(i) to pursue those who have received assets wrongly by way of

a personal claim, as in Ministry of Health v Simpson (1951).
Inquiries must be made to see that the recipient is solvent and
the claim is worth being pursued;
(ii) alternatively, a tracing action can be pursued to follow the
assets into the hands of those who have received them other
than a bona fide purchaser for value without notice of any
defect. This action does not depend upon the solvency of
the recipient, rather, it is an action against the asset in
question. In order to succeed, the asset must be in a
traceable form and it must not be inequitable to trace in the
circumstances.

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A leading example of tracing is the lengthy judgment of the Court

of Appeal in Re Diplock (1948), where property was left by will to
named charities for charitable or benevolent purposes. After
distribution of many of the assets, the will was successfully
challenged on the basis that the gift should have read charitable
and benevolent. As a result, a succession of tracing actions
commenced. The court said that where, for example, property had
come into the hands of an innocent volunteer who had mixed the
property with his own, perhaps, for example, extending a house,
it would be inequitable to allow a tracing action to succeed. Tracing
is not barred by limitation but, being an equitable remedy, the
party seeking the relief must act promptly and, if guilty of laches
(delay), the right to take action will be lost.

Question 49

Sam died a month ago. By his will, he gave his estate to Eric and
Dan on trust for Sam’s wife Tessa and their son James, aged 12.
The residue includes a wholesale electrical equipment business.
Tessa has asked Eric and Dan to carry on the business.

Answer plan

This question deals with the duties of personal representatives.

The executors should endeavour to settle debts and distribute
the estate at the earliest opportunity. They have to be careful
concerning personal liability where a business, formerly run by
the deceased, is included in the assets. The question entails
specific consideration of the contractual liability of the
executors.

Answer

Eric and Dan do not have to formally accept the appointment as

executors. Should they do any act which an executor would
normally do, this will constitute acceptance of office, for example,
collecting assets or paying debts would be sufficient to amount to

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acceptance rendering the person or persons liable as executor (see

Re Stevens (1897)). Care should be taken where, included in the
assets, there is a business formally conducted by the deceased.
The personal representatives are under a duty to realise the assets
to their best advantage. In the case of a business, it can be important
to preserve the value of the goodwill. Goodwill is defined as the
likelihood that the customer will return; therefore, any gap
following the decease of a sole proprietor can seriously diminish
the capital value.
In the course of the administration of the estate, the personal
representatives may enter into contracts. Provided the personal
representative clearly contracts as personal representative, then
his liability is limited to the net assets of the estate. However,
this limited liability only applies where the contract is
authorised, that is to say, within the powers of the personal
representative in dealing with the administration of the estate.
One area where the law is restrictive on powers is the ability of
the personal representative to borrow money. This power is
limited to the arranging of a loan to pay death duties where
payment is necessary prior to the issue of the grant. In the case
of funeral expenses, if no other person is liable (as a result of
arranging the funeral), the personal representative is liable to
the extent of the assets in his hands by virtue of an implied
contract with the undertaker to provide a funeral
commensurate with the station in life of the deceased.
In the case of trading contracts where, as in this case, the
deceased carried on a business on his own account, the personal
representative is entitled to carry on the business, if the goodwill
is of value, to such an extent as to enable the business to be sold to
the best advantage of the estate. If the personal representative does
so, the expenses incurred count as administration expenses. The
personal representative is liable to the trade creditors, but can be
fully indemnified from the estate.
Debts incurred prior to the death of the deceased in respect
of the business are liabilities of the estate in the normal way. If
the personal representative prolongs the trading and is entitled
to indemnity from the estate (that is, so long as he has authority
either from the will or agreement of the beneficiaries), this right

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is postponed to the rights of the creditors at death, unless the

creditors give express sanction to continue the business at their
risk (see Re Oxley (1914)).
Where Eric and Dan have to be careful is that for debts incurred
after the death of the deceased, whether they carry on the business
for early realisation or on a longer term, authorised or not, they
are not personally liable to the creditors. This applies even though
they expressly trade as personal representatives. Provided they
have the requisite authority, they will be entitled to be indemnified
from the estate. The indemnity ranks after the payment of liabilities
but before the beneficiaries. If there is, however, a deficiency of
assets to meet the indemnity, the personal representatives will
stand the loss personally.
Where the personal representative has a right of indemnity, the
post-death creditors have a claim against the estate by way of
subrogation, but only against those assets over which the personal
representative could exercise the right with the same degree of
priority. The only situation where the post-death creditors would
have rights over the pre-death creditors is where the latter
expressly authorised the personal representatives to continue to
trade.
Eric and Dan would therefore need the express authority in the
will to continue the business beyond mere realisation. There is no
indication in the question whether the express authority is included
in the will. There may be an implied authority, if the trust for sale
confirmed in the will contains a power to postpone sale. In Re
Crowther (1895), it was held that a power to postpone carried with
it by implication a power to carry on the business during the period
of postponement.
If there is no express power in the will and there is no power to
postpone the sale, the personal representatives have no authority
to carry on the business except for the purposes of administration.
If they do carry on the business beyond mere realisation without
authority, they will be personally liable for any loss without the
right of indemnity. If they wish to agree to Tessa’s request, they
could seek an indemnity from Tessa or obtain a court order
authorising them to carry on the business beyond mere realisation.
The problem of a personal indemnity from Tessa is that it may
prove valueless if she dissipates her assets.
A further problem is that personal representatives cannot profit
from the trust. Where they carry on a business, they are only

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entitled to remuneration if the will expressly provides for suitable

remuneration or all the beneficiaries agree. To agree the
beneficiaries must all be sui juris. The problem here is that James
is under age. Eric and Dan could consider limited liability status
for protection, but they would need the consent of the court to
effect this.
Eric and Dan should seek advice before they agree to Tessa’s
request to carry on the business beyond merely completing the
administration of the estate.

Question 50

Consider why application may be made for a grant:

• ad colligenda bona;
• administration durante minore aetate;
• de bonis non administratis.

Answer plan

This is a straightforward question. Each separate grant should be

defined and the reasons given for its purpose together with
illustrations from the case law or statute.

Answer

Ad colligenda bona

One might call this the ‘tomato’ grant, in that where an estate
consists of perishable or other assets which need quick attention
and nobody has applied for probate or administration, then a grant
ad colligenda bona may be obtained. The grant is limited to dealing
with the assets which are the subject matter of the application.
The grant enables the applicant to do what is necessary to preserve
the asset and does not per se give the applicant power of sale over

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the asset. Where, however, the asset is in danger of wasting, then

application can be made to the court at the time of applying for a
grant for an order for sale.
An interesting illustration of the use of this type of grant
occurred in the litigation surrounding the death of the late Sir
Charles Clore. An action was brought by the Inland Revenue
to expedite the payment of capital transfer tax arising on the
death of Sir Charles. Shortly before his death, he had conveyed
an estate in England to his nominees Stype Investments
(Jersey) Limited to hold as bare trustees for Sir Charles. The
company entered into a contract of sale of the estate and prior
to completion, Sir Charles died. When contracts were
exchanged, the company remitted the deposit monies to their
bank in Jersey. On completion of the sale, the company
remitted the balance sale proceeds to Jersey. They then did
nothing regarding the settlement of capital transfer tax liability
arising on the English estate of Sir Charles. The Inland
Revenue brought an action to constitute the company executors
de son tort. This action failed at the first instance, but the Inland
Revenue appealed and at the same time, the Official Solicitor
applied for a grant to the estate ad colligenda bona specifically
to deal with the outstanding capital transfer tax. This action,
Re Charles Clore (Dec’d) (1982) was heard at the same time as
the appeal by the Revenue and on appeal, Stype Investments
were held to be executors de son tort.

Administration durante minore aetate

Where, by his will, the testator appoints an executor who is

under age at the time of the testator’s death when the will takes
effect, then the minor cannot apply for a grant of probate (s 118
of the Supreme Court Act 1981). Where the person has been
appointed sole executor, then an application must be made for
a grant of administration with will annexed limited in time to
the minority of the named executor, hence the title administration
durante minore aetate. Where the minor is appointed sole
executor and has no interest in the residuary estate, the person
entitled to the residue is entitled to apply for the grant (see r
32(1) of the Non-Contentious Probate Rules 1987). Where the

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minor has a beneficial interest in the residue, the parent of the

minor who has parental responsibility for him will be entitled to
the grant (r 32(1)). If the minor’s parents were married when the
minor was born, then both parents will have parental
responsibility (s 2 of the Children Act 1989) and either or both
of them are entitled to take out the grant. If the parents were not
married when the minor was born, the mother has parental
responsibility, but the father can obtain parental responsibility
by a court order or by agreement with the mother (ss 4 and 5 of
the Children Act 1989). Alternatively, the court may appoint a
guardian for the minor under r 32(2) of the 1987 Rules.
An administrator under this limited grant has all the powers of
an ordinary administrator; therefore, he can proceed to sell assets
and complete the administration (Re Cope (1880). The minor can,
however, call the administrator to account whether or not the
minor has a beneficial interest in the estate (Harvell v Foster (1954)).
The grant is usually limited expressly until the minor attains
18. When the minor attains 18, the grant automatically ceases and
then the minor can apply for probate.
Where the testator has appointed A and B to be his executors
and A is a minor but B is of age and able to prove this, then probate
will be granted to B with power reserved for A to prove when he
attains majority. There would be no need, therefore, for a grant of
administration durante minore aetate. However, if B is slow in
making up his mind whether to take out the grant of probate,
then those acting on behalf of A should issue citation to B to make
up his mind whether to take out the grant of probate and, if not,
then whoever is entitled would apply for a grant of administration
with letters annexed durante minore aetate.

De bonis non administratis

This form of grant translates literally as ‘of the goods not yet
administered’. The grant may be applied for where a grant of
probate or letters of administration have already been issued to
someone, but the representative has not completed the
administration of the estate and there is no representative by
operation of the change of representation under s 7 of the
Administration of Estates Act 1925. The grant de bonis non may
be issued where a previous grant is revoked, for example, where

215
Q & A ON SUCCESSION

the personal representative has disappeared. In Loveday (1900),

the deceased died intestate leaving a widow and six children by
a former marriage. The widow obtained letters of
administration, but subsequently disappeared before
completing the winding up of the estate. The grant to her was
revoked and a grant de bonis non was issued to one of the
children. The grant de bonis non has also been issued where a
grant was revoked, when the original administrator
permanently left the jurisdiction (Re French’s Estate (1910)).
The grant is most commonly issued where a sole administrator
has obtained the grant but has died before completing the
administration of the estate. A grant de bonis non would also be
issued where a sole surviving executor, having obtained probate,
dies in the course of the administration of the estate in
circumstances where the chain of representation is broken. Section
7 of the Administration of Estates Act 1925 provides that where
an executor who obtains the grant of probate dies in the course of
the administration, having appointed by his will an executor who
proves his estate, then this proving executor becomes executor
automatically by representation to the estate of the original
deceased. The chain can be broken by the original executor dying,
not having made a will or failing to appoint an executor or the
executors named predeceasing the appointor.
Suppose the testator, by his will, names A and B to be his
executors and A takes out a grant of probate but B does not and
so the power is reserved to be proved at a later date. Then A
dies, having appointed C to be his executor. If C accepts the
appointment to A’s estate, it would appear that he would
become executor by representation to the estate of the original
testator. However, before taking over the estate by
representation, C should cite B to force B to make up his mind
as to whether he wishes to take out probate to the original
estate. If C does not do this, then he faces the risk that he may
become executor by representation with the additional work
that this entails only for B to come along at a later date and
exercise his right to take out probate. If B, in response to the
citation, does take out a grant of probate and he then dies before
completing the administration, a de bonis non grant would have
to be issued.

216
 THE ADMINISTRATION OF THE ESTATE

If there are two personal representatives who take out the grant
and one dies during the course of the administration all the powers
of probate or administration pass to the surviving personal
representative. If he should die before completion of the
administration, then a grant de bonis non will again be necessary.
A grant de bonis non can only be made to the persons who would
have been entitled to the original grant either of administration or
administration with will annexed following the orders of
entitlement laid down by rr 20 and 22 of the Non-Contentious
Probate Rules 1987.

217
 INDEX
Abatement 140, 148 judicial trustees 207–08
Acknowledgment 40, 41 legacies
Ad colligenda payment of 148
bona grants 213–14 pecuniary 186–93
Ademption legal proceedings 206–10
definition 140 letters of
partial 111 administration 162, 183
specific legacies 105, 107, pecuniary legacies 186–93
110–11, 114–15, probate 147, 162, 183
140, 142–43 receivers,
Administration appointment of 207
of estates renunciation 181
See, also, Executors, Administrators
Grants of administration
administration, of estates 207–08
Personal appointment of 207–08
representatives 147–217 intestacy 65
ad colligenda judicial trustees 208
bona grants 213–14 time limits 208
administrators, Advertisements 154–55, 196
appointment of 207–08 Affidavits 33, 61, 109
beneficiaries After-acquired
dissatisfaction property 61
with 206–10 Alteration of wills
chain of acknowledgment 41
representation 165–66 attestation 38, 40–41,
creditors 52–53
dissatisfaction clerical errors 19–20
with 206–10 courts, by 18–21
de bonis evidence 109
non administratis 215–17 formalities 27–28
debts insertions 41
burden of 171–80 interpretation 41, 120
incidence of 171–80 legacies 110
payments of 148 mutual wills 59, 62
delay in 161–64, 166 negligence 194–95
dissatisfaction obliteration 38
with 206–10 omissions 18–20
distribution 178–80 rectification 18–21
durante minore revocation of wills 52
aetate solicitors 194–95
administration 214–15 void 52
Inheritance Tax 162 Appropriation 105–06, 201–02
insolvency 183–86 Armed forces 55, 56–58

219
Q & A ON SUCCESSION

Assignment 181, 205 representation 165–66

Attestation Charging clauses 163
alteration of wills 38, 40–41, Chattels
52–53 definition 73–76
formalities of wills 26–28, intestacy 65–67, 70,
31–32, 35 73–76, 134–36
revocation of wills 40 legal proceedings
for the recovery of 199
Barristers’ opinions, personal 65–67, 70,
reliance on 209 73–76, 134–36
Beneficial interests 67, 158–59, personal
182–83 representatives 199
Beneficiaries sale of 67
administration of surviving spouse 73–74,
estates, 134–35
dissatisfaction Children
with 206–10 adult 79, 93–94, 100
class gifts 144–45 child of the family,
distribution, meaning of 87–88
pending 204–06 durante minore
formalities of wills, aetate
involvement in 34 administration 214–15
identification of 145 executors 152
intestacy 70 family provision 79, 80–82,
legal proceedings 206–10 87–88,
negligence 148, 193–98 93–94,
solicitors 148, 193–98 97–98,
trusts 204–05 100–01
wills 148, 193–98 general legacies 203–04
witnesses, as 70 grants of
Benjamin orders 155 administration 163
illegitimacy 93–94
Capacity interest 203–04
See, also, Mental letters of
capacity administration 162, 183
donatio mortis causa 134 parental
fraud 14–17 responsibility for 214–15
undue influence 14–17 Chose in action 205
wills 1–2, 10–17 Citations 147
formalities of 31, 33–34 Civil servants 159–60
Caveats 147 Class closing rules 145
Chain of Codicils 51–52, 199

220
 INDEX

Cohabitation 81, 88, 98 burden of 171–80, 187

Commorientes rule 107 categorisation
Conflicts of interest of assets 172–73,
Construction 175–77, 180, 183
See Interpretation Customs
Constructive trusts 127 and Excise 185, 186
Contracts deferred 186
breach of 6–7 delay 178
personal devastavit 167–68, 178
representatives 211 drafting 177
wills 6–9 due diligence 178
Creditors executors 178–80
administration of exoneration 174, 176
estates, expenses 177, 185
dissatisfaction friendly societies 185
with 206–10 general 171–73, 175
devastavit 167–68 incidence of 171–80,
legal 187, 189
representatives 206–10 Inland Revenue 185, 186
preferred 167–68 insolvency 183–86
time limits 208 intention 172–74,
Custom 120 176–77, 179
Customs and Excise 185, 186
interpretation 174–75
joint tenants 180
Death marshalling 173
death in service mortgages 171–73, 176,
benefits 159 179–80
donatio
national insurance
mortis causa 106, 125–30,
contributions 185
133–34,
ordinary 186
136–37, 158
payment of 148, 171–77
duties 164, 211
pecuniary
executors 165, 183, 216
legacies 187–89,
interpretation 177
191–92
order of 112–13,
pensions 185
130–33
personal personal
representatives 216–17 representatives 154–55,
survivorship 112–13, 167–68,
130–33 183–93,
Debts 211–12
abatement 148 preferred 167–68, 185
administration priorities 185–86
of estates 148, 171–77 residuary

221
Q & A ON SUCCESSION

property 175–77, 179 preferred 167–68

secured 183 debts 167–68, 178
shares 172–73 delay 169
specially executors 154, 178
preferred 185 expenses,
specific legacies 176 unjustified 167–68
statutory order leases,
for payment of 148, 171–80, uneconomic 168
184 liability 167
variation of 173–77, maladministration 167–68, 170
179–80, 187 meaning 167–70
unsecured 148, 183 misappropriation
wages 185 of assets 167–68, 170
Demonstrative personal
legacies 106, 141–42 representatives 148, 167–70,
Dependants 197, 208
family provision 77–78, time limits 170
81–82, trustees 169–70
89, 96–98, valuation 167
101, 135 Distribution
prior 81, 89, administration
96–98, 101, 135 of estates 178–80
Destruction assets, of 178–180
of wills assignment 205
accidental 49 beneficiaries
cancellation 48 rights pending 204–06
evidence 49 chose in action 205
intention 44–45 family provision 79–80
interpretation 47–48 intestacy 63–73, 80,
mental capacity 48–49 134, 182
mistake 49 personal
revocation representatives 197–98,
of wills 44–46 204–06
signatures 48, 50 residuary benefits 205
Devastavit trusts 204–05
agents 169 unadministered
assets estates,
failure to ownership of 206
safeguard 167–68 variation 205
misappropriation of 167–68, Divorce
170 family provision 85–86, 90,
breach of trust 167 170 96, 100
creditors, revocation

222
 INDEX

of wills 37, 39, 42–44 interpretation 106–17,

Donatio mortis causa 133–34 120–25, 141
capacity 134 legacies 106–15
constructive trusts 127 mutual wills 59–60
control, passing of 127–30 revocation
death, of wills 45–46, 53
contemplation of 125–30, survivorship 131–32
133–34 Executors
136–37, 158 acceptance of
reasonable 127, 137 office as 147, 153–55,
evidence 137 161–64, 210–11
grants of accountability of 154–55
administration 158 appointment of 32–33,
intention 126–28, 130 35–36,
inter vivos gifts 106, 109–10, 152
126, 128, assignment of 181
130, 134 caveats 147
meaning 126 chain of
personal representation 165
representatives 127–28 children 152
requirements for 106 citations 147
suicide 129 de son tort 147, 154–55,
validity 125–30, 164–64, 181
136–37 death duties
writing 130 death of sole
Durante minore or last 165, 183, 216
aetate administration 214–15 debts 178–80
devastavit 154, 178
Errors due diligence 154, 178
See Mistake duties 210–13
Estoppel evidence 109–10
Evidence 138 expenses 163
affidavits 109 formalities
alterations 109 of wills 32–33, 35–36
armchair rule 112, 115 indemnities 154
custom 120 intestacy 166
destruction liability of 155, 161–64,
of wills 49 182, 210–13
donatio necessity, acts of 163, 182
mortis causa 137 office of 153–55
executors 109–10 passing over 147, 162
extrinsic 109–10, probate 162
114, 116, renunciation of
121–24, 141 office 147, 154, 163–64,

223
Q & A ON SUCCESSION

181–83 102–03
representation, by 150, 165–66 illegitimacy 93–94
valuation 181–82 Inheritance
Expenses (Provision
charging clauses 163 for Family and
debts 177, 185 Dependants)
devastavit 167, 168 Act 1975 80, 83–103,
executors de 135, 137–38
son tort 163 Inheritance Tax 98
insolvency 184–85 intestacy 79–80
intestacy 65 judicial separation 85, 90, 96
pecuniary legacies 187–89 life interests 86
personal maintenance
representatives 163, 211 standard 78, 80–82,
priorities 184–85 85, 87–97,
unjustified 167, 168 100–02, 135–38
moral obligations 79, 80,
Family home 87–88, 95,
family provision 86 97–98
grants of prior dependence 81–82, 89,
administration 156–57 96–98, 101
intestacy 63, 70, 72, proprietary
156–57 estoppel 138
life interest 86 reasonable
Family provision 77–103, 134 provision 87, 94–95, 97,
adult children 79, 93–94, 99–103, 135
100 standing 77, 79,
applications 77–103 80–89, 96,
assumption of 99–102, 135
responsibility 82, 88 supervening
categories events 101
of applicants 77–78 surviving spouse
children 79, 80–82, standard 78–79, 85,
87–88, 93–94, 90, 96, 98,
97–98, 100–01 100–03,
cohabitation 81, 88, 98 137–38
dependants 77–78, 81–82, time limits 77, 87, 97,
89, 96–98, 100, 137
101, 135 Financial provision
distribution 79–80 See Family
divorce 85–86, 90, provision
96, 100 Forfeiture rule
family home 86 homicide 107–08,
guidelines 78, 85–86, 145–46

224
 INDEX

intestacy 145 interpretation 111, 141

meaning 107–08 personal
modification of 145 representatives 105–06
Formalities of wills 23–36 specific legacies and 111, 144
affidavits 22 Gifts
alterations 27–28 See Legacies
approval of 33–34 Goodwill 211
attestation 26–28, Grants of
31–32, 35 administration 156–60
beneficiaries’ ad colligenda
role in preparing bona grants 213–14
wills 34 beneficial
capacity 31, 33–34 entitlement 158–59,
executors, 182–83
appointment of 32–33, chain of
35–36 representation 165–66
insertions, children 163
attestation of 32–33 civil servants 159–60
knowledge 33–34 de bonis non 165–66, 183,
presence of testator 23 215–17
privileged wills 55, 56 death in
signatures 23, 24–27, service benefits 159
29–31, 35 donatio
name, in own 27 mortis causa 158
place of 25–26 durante minore
suspicious aetate
circumstances 34–35 administration 214–15
testamentary family home 156–57
intention 25–27, 33–34 Inheritance Tax 156–60
witnesses 26–33, 35 inter vivos gifts 157
writing 25 intestacy 147,
Fraud 14–17 156–57, 182
Friendly societies 185 investments 157
joint tenants 156–57, 159
General legacies 105–06 life assurance 158–59
appropriation 105–06 low value states 160
children 203–04 order of
contingent 202–03 entitlement 181–82
deferred 202–03 pension benefits 159, 160
demonstrative personal
legacies 141–42 representatives 150
interest 202–04 potentially exempt

225
Q & A ON SUCCESSION

transfers 157–58 surviving spouse 98, 137

property not Inland Revenue 185, 186
subject to 159–60 Insertions 32–33, 41,
revocation 215–16 52–53
shares 160 Insolvency
statutory administration
nomination 157 of estates 183–86
survivorship 156–57 debts 183–86
tenancies expenses 184–85
in common 157 joint tenants 184
types of 147 priorities 184–85
security 184
Homicide 107–08, trustees 184
145–46 Insurance
Hotchpot provisions 68 intestacy 63
life 63, 158–59
Illegitimacy personal
family provision 93–94 representatives 155, 197–98
legacies 112 Inter vivos gifts
personal donatio
representatives 198 mortis causa 106, 126,
Indemnities 154, 155, 128, 130, 134
197, 208, grants of
211–12 administration 157
Inheritance intestacy 136
(Provision Interest 202–04
for Family and Interpretation
Dependants) alteration
Act 1975 80, of wills 111, 120
83–103, 135 ambiguity 117,
Inheritance Tax 121–23, 125
administration armchair rule 112, 115,
of estates 162 117, 119,
family provision 98 clerical errors 121, 125 121
grants of custom 120
administration 156–60 death of testators 117
intestacy 72–73 debts 174–75
life insurance definition clauses 118
policies 158–59 destruction
personal of wills 47–48
representatives 163 evidence 106–17,
potentially exempt 120–25, 141
transfers 157

226
 INDEX

general legacies 111, 141 forfeiture rule 146

intention 117–18, grants of
120–21, 123–24 administration 147, 182
judicial hotchpot
attitudes to 115–25 provisions 68
legacies 106–15, 140 Inheritance Tax 72–73
general 111 inter vivos gifts 136
specific 111 issue 68
liberal joint tenants 63, 67, 70,
approach to 116 156–57
literal 123–24 judicial separation 64, 67
money 116, 124 life insurance
next of kin 119–20 policies 63
ordinary life interest 63, 66–68,
grammatical 70–72
meaning 118 limited 166
rectification 118, partial 40–42, 63,
120–21, 123 69, 148
revocation pecuniary
of wills 47 legacies 189
rules 123–24 personal chattels 65–67, 70,
secondary 73–76, 136
meanings 118–19, 124 personal
survivorship 123 representatives 65
technical priority 64, 67,
meanings 119 68, 73
Wigram rules 121–22 statutory legacy 66, 70–72
wills 41, 47–48, surviving spouse 63–65,
106–07, 68–69,
112–13, 115–25 72–75
Intestacy 63–76 survivorship 63–65,
abatement 148 67–70, 72–75,
administrators 65 132, 134, 138–39
beneficial interests 67 trustees 166
contingency age 69 trusts 66, 71
contingency wills 40–41
interests 72 revocation of 42–46
distribution 63–73, 80, witnesses as
134, 182 beneficiaries 70
executors 166 Investments 157
expenses 65
family home 63, 70, 72, Joint tenants
156–57 debts 180
family provision 80 grants of

227
Q & A ON SUCCESSION

debts 180 illegitimacy 112, 113

grants of intention 110, 114
administration 156, 159 interpretation 106–15, 140
insolvency 184 inter vivos 106
intestacy 63, 67, 70, interpretation 106–15
156–57 lapsing of 107,
negligence 195 140, 142
solicitors 195 residuary 113
survivorship 67, 70, Letters of
156–57 administration 162, 183
tenancies in Life insurance
common, policies
conversion into 157 beneficial
Judicial trustees 208 entitlement to 158–59
Judicial separation 64, 67, 85, grants of
90, 96 administration 158–59
Inheritance Tax 158–59
Land intestacy 63
personal Life interest
representatives 151–52, 200 family home 86
title to 151–52 family provision 86
trustees 151–52 intestacy 63, 66–68,
Leases 168 70–72
Legacies Loans 211
See, also, General Locus standi
legacies, Pecuniary See Standing
legacies, Specific
legacies 105–46 Maintenance
abatement 140 family provision 78, 80–82,
administration 85, 87–97,
of estates 148 100–02,
affidavits 109 135–38
alterations 110 meaning 91–94, 96
ambiguity 109–10, reasonable 137–38
113–14 Maladministration 167, 168, 170
class gifts 144–45 Marriage
commorientes rule 107 See, also, Divorce
death, order of 112–13 expectation of 9, 43–44,
demonstrative 106, 46, 51
141–42 judicial separation 64, 67,
evidence 106–15 85, 90, 96
failure of 105, revocation
107, 143 of wills 6, 9, 37,
forfeiture rule 107–08 42–46, 50–53

228
 INDEX

Marshalling 173 Next of kin 119–20

Matrimonial home Obliteration 38, 52
See Family home Oral statements 55, 56–58
Mental capacity
wills 1–2, 10–14 Pecuniary legacies
destruction of 48–49 burden of 187, 189,
Military service 55, 56–58 191–92
Misappropriation 167, 169, 170 categorisation of 187–89
Mistake debts 187–89,
alteration 191–92
of wills 19–20 expenses 187–89
clerical errors 19–20, 121 fund 186, 189,
destruction 191–92
of wills 49 incidence of 187–89
interpretation 121 intestacy 189
Money 116, 124 meaning 106
Mortgages 171–73, 176, mixed fund,
179–80 payment out of 191
Mutual wills 59–62 personal estate,
after-acquired out of 188, 190–92
property 61 personal
alterations 59, 62 representatives 189
conduct 60 property out of
evidence 59–60 which payable 186–93
express clauses 60 realty, paid out of 188, 190–93
identification residuary estate 188–92
of property 61 statutory order
intention 61 for payment of 186, 190–91
meaning 55–56 variation of 187
revocation trusts
of wills 55–56, 62 express 189–90
survivors 59–61 sale, for 189–90
trusts 60–61 undisposed
property 192–93
National Insurance Pensions
contributions 185 civil servants 160
Negligence death in
alteration of wills 194–95 service benefits 159
beneficiaries 148, 193–98 debts 185
joint tenants 195 grants of
solicitors 148, 193–98 administration 159, 160
wills 148, 193–98 Personal chattels 65–67, 70,

229
Q & A ON SUCCESSION

73–76, 134–36 210–13

Personal expenses 163, 167,
representatives 168, 211
administration general legacies 105–06, 201
period, end of 149–51 goodwill 211
advertisements 154–55, 196 grant of
appointment administration 150
limited 149–50 illegitimacy 198
appropriation 105–06, indemnities 197, 208,
201–02 211–12
assent to passing Inheritance Tax 163, 201
of property 198–202 insurance 155, 197–98
delay in 201 intestacy 65
land 200 joint authority 150
oral 198–99 land 200
vesting leases 168
of property 199 legal
writing 198–200 proceedings 199, 207, 208
barristers’ opinion, liability of 163, 167–70,
reliance of 209 183–93,
beneficiaries, 208, 210–13
protection of 201 loans 211
Benjamin orders 155 mental capacity 201
breach of duty 148, 208 notice of claims 196–97
breach of trust 167 passing
chattels 199 of property,
codicils 199 assent to 198–200
contracts 211 pecuniary legacies 189, 201
death 216–17 personalty, assent
duties 211 to passing of 199
debts 154–55, 167–68, plene administravit,
183–93, 211–12 plea of 209
delegation 155 powers of 148
demonstrative profits 212–13
legacies 106 protection of 208–09
devastavit 148, 167–70, purchasers,
197, 208 protection of 200–01
distribution 197–98, 204–06 realty 200–01
donatio remuneration 213
mortis causa 127–28 role of 149–50
duration of searches 197
role of 149–50 specific legacies 201
duties of 147–53, 162, statutory

230
 INDEX

protection of 196–98 legacies 188–92

title to land 151–52 Revival
tracing 209–10 of wills 39, 50–53
trustees Revocation
distinction of wills 6–9
between 148–53 acknowledgment 40
same person attestation 40
appointed as 148–53 cancellation 46, 48
trusts 167 codicils 51–52
valuation 201 conditional 38, 40–41,
wills, validity of 208 45, 49, 52–53
Plene administravit 209 contingencies 45, 49
Privileged wills 56–58 dependant
formalities of wills 55, 56 relative 45
intention 57–58 destruction 44–50
military operations 57 divorce 37, 39, 42–44
military service 55, 56–58 evidence 45–46, 53
oral statements 55, 56–58 express
revocation of wills 55 clauses on 37, 42–43, 45
validity 56–58 formalities
Probate of wills 38–41
delay 162 insertions 52–53
entitlement to 183 intention 44–45,
executors 162 47–50, 52–53
grants of 147 interpretation 47
Promises 6–9 intestacy 43–46
Property partial 40–41, 42
identification of 8–9, 61, intention 37, 38
110–11 marriage 6, 9, 37, 39,
wills 8–9 42–46, 50–53
Proprietary expectation of 43–44,
estoppel 138 46, 51
methods of 37, 41–46
Receivers 207 mutual wills 55–56, 62
Rectification obliteration 52
interpretation 118, partial intestacy 40–41, 42
120–21, 123 privileged wills 55
wills 18–21 qualified 49
Residuary legacies revival of wills 39, 50–53
debts 175–77, 179 signatures 40
distribution 205 witnesses
intention 113 acknowledgment of 39
pecuniary

231
Q & A ON SUCCESSION

attestation by 39 tracing 111, 114

Searches 197 Spouses
Shares 110–12, 114–15, chattels 73–74
Signatures 142, 144, 172–73
destruction family provision 78–79, 85,
of wills 48, 50 90, 96, 98,
formalities 100–03
of wills 23, 24–27, Inheritance Tax 98, 137
29–31, 35 intestacy 63–65, 68–69,
legibility 48 72–75
name, in own 27 personal chattels 134–35
placing of 25–26 reasonable
revocation provision 138
of wills 40 statutory legacies 134
Solicitors surviving 63–65,
alterations 68–69, 72–75
of wills 194–95 family
assumption of provision 78–79,
responsibility 194 85, 90, 96,
beneficiaries, 98, 100–03,
duties to 148, 193–98 137–38
conflicts Standing 77, 79,
of interest 17 80–89, 96,
joint tenants 195 99–102, 135
liability 193–98 Statutory legacies 66, 70–72, 134
negligence 148, 193–98 Statutory trusts 71
wills 17, 193–98 Suicide 129
Survivorship
Specific legacies
chattels 73–74
ademption 105, 107,
death, order of 112–13,
110–11, 114–15,
130–33
140, 142–43
evidence 131–32
change in
grants of
form of 105, 111 administration 156–57
debts 176 Inheritance Tax 98
definition 109 interpretation 123
failure of 105 intestacy 63–65,
general legacies 111, 144 67–70,
identification of 110–11 72–75, 132,
intention 111, 144 138–39
interpretation 111 joint tenants 67, 70, 156
shares 110–11, personal chattels 134–35
114–15, 142, 144 presumptions 112–13, 123,
specific gifts 144 130–33
survivorship reasonable

232
 INDEX

provision 139 title to land 151–52

seniority, order of 132 trust
specific legacies 140 corporations, as 152
statutory legacies 134 Trusts
surviving spouse 63–65, See, also, Trustees
68–69, beneficiaries 204–05
72–75, 134 breach of 167
family constructive 127
provision 78–79, 85, distribution 204–05
90, 96, 98, donatio mortis causa 127
100–03, 137–38 intestacy 66
mutual wills 60–61
Taxation pecuniary legacies 189–90
See, also, personal
Inheritance Tax 185, 186, representatives 167
214 sale, for 189–90
Tenancies statutory 66, 71
in common 157
Time limits Undue influence
administrators 208 capacity 14–17
creditors 208 coercion,
devastavit 170 evidence of 15, 17
family provision 77, 87, 97, wills 2, 14–17
100, 137
interest 202–03 Wages 185
Wasting assets 213
Title to land 151–52
Wills
Tracing 111, 114,
See, also, Alteration of
209–10
wills, Formalities
Trustees
of wills, Legacies,
administration Mutual wills,
of estates 208 Privileged wills,
administrators 208 Revocation
appointment of 150 of wills
authority of 150 capacity 1–2, 10–17
duties 149–53 clerical errors 19–20
executors 166 conflicts
insolvency 184 of interest 17
judicial 208 contracts,
personal breach of 6–9
representatives court ordered
distinction alteration of 18–21
between 148–53 delay in
same person preparation for 194
appointed as 148–53 documents, more

233
Q & A ON SUCCESSION

than one 3–4 promises 6–9

drafting of 193–98 property,
evidence 106–07 identification of 8–9
fraud 14–17 rectification 18–21
inconsistent solicitors 17, 193–98
clauses 107 statutory 1–2
instructions for 193–98 suspicious
intention to make 2–6, 11–14, circumstances 12
19, 136 technical language 18–19
interpretation 106–07, undue influence 2, 14–17
112–13, 115–25 validity of 2–6, 10–17,
marriage 6, 9 23–36, 208
mental disabilities 1–2, 10–14 witnesses 7
negligence 193–98 Witnesses
omission of words, beneficiaries, as 70
court ordered 18–20
intestacy 70
personal
wills 7
representatives 208
formalities of 26–33, 35

234