Preparation And Construction Of Wills

Front 1

CHOICE OF EXECUTORS:

PROFESSIONAL

LAY

Back 1

CONSIDER;

COMPLEXITY

WILLINGNESS

ABILITY

COST V SIZE OF ESTATE

GRANT FOR UP TO 4 - power can be reserved or renounce

Front 2

FIDUCIARY RELATIONSHIP

CHARGING CLAUSES - PROFESSIONALS

EXPENSES ONLY - LAY EXECUTORS

Back 2

S28 TRUSTEE ACT 2000 -

• FOR PROFESSIONAL TRUSTEES
• AS TRUST EXPENSE FOR PURPOSE OF AJA ORDER OF PAYMENTS AND S15 WILLS ACT
• S29 - TRUST CORPORATION CAN CHARGE IN ABSENCE OF CHARGING CLAUSE

Front 3

POWERS -

EXECUTOR V ADMINISTRATOR

Back 3

WILL V GRANT

Front 4

BENEFICIARY CONSIDERATIONS

Back 4

• must not be witnesses s15 WA 1837
• mind IPFDA 1975 claims
• foreign immoveable property
• property passing outside will
• expectations - Bradbury v Taylor (PE claim on house)
• NO CONTEST CLAUSES- NATHAN V LEONARD

Front 5

INCORPORATING DOCUMENT BY REFERENCE:

1. MUST EXIST AT TIME OF WILL

2. MUST BE REFERRED TO AS EXISTING

3. MUST BE CLEARLY REFERENCED

• CAN SAVE AN INVALID WILL

Back 5

1. SINGLETON V TOMLINSON

2. RE. SMART

3. IN THE ESTATE OF MARDEN

• IN THE GOODS OF AMOSNINO

Front 6

PROBLEMS WITH CONSTRUCTION

- meaning of words actually used

1. TECHNICAL WORDS GIVEN TECHNICAL MEANING

2. OTHERWISE NATURAL MEANING IN CONTEXT AS UNDERSTOOD BY LAY PERSON

Back 6

1.RE COOK

2. INVESTORS COMPENSATION SCHEME V WEST BROMWICH BS

Front 7

UNCERTAINTY

- RENDERS A WILL OR GIFT VOID UNLESS IT CAN BE INTERPRETED

EXTRINSIC EVIDENCE ;

• MEANINGLESS WITHOUT
  
• PATENT AMBIGUITY
  
• LATENT AMBIGUITY

not to vary or contradict

Back 7

- ANTHONY & OER V DONGES (such minimal sum - void for uncertainty)

S21 ADMINISTRATION OF JUSTICE ACT 1982

EG. CLAYTON V LORD NUGENT

Front 8

DUTY OF CARE - COMMON LAW DUTY VIS A VIS DRAFTSMAN & BENEFICIARY

Back 8

ROSS V CAUNTER - failures at execution solicitor (witness beneficiary)

ESTERHUIZEN V ALLIED DUNBAR - extended to non solicitor

WHITE V JONES - time taken to draft a will (40 days) - see also X V YU KU YUN

CARR-GLYNN V FREARSON - failure to sever joint property

Front 9

RECTIFICATION

s 20 ADMINISTRATION OF JUSTICE ACT

Walker v Meldicott - should rectify before negligence claim.

- application within 6 months of date of grant (discretion to extend - re Chittock)

Front 10

CLERICAL ERRORS

• CLERICAL ERROR BY TESTATOR
  
• MISSING OUT CLAUSES
  
• WIDER ADMINISTRATIVE ERRORS

MISUNDERSTANDING INSTRUCTIONS

Back 10

• RE WILLIAMS DECEASED
  
• WORDINGTON V ROYAL EXCHANGE TRUST CO
  
• MARLEY V RAWLINGS (HOFL)
  

GOODMAN V GOODMAN