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7 Cards in this Set
- Front
- Back
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Intro |
Following the Statute of Wills 1634 land could be willed and this avoided the elaborate use or trust arrangements that had upset Henry VIII. SA s76 "a person may by his will, executed in accordance with this act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves on his personal representatives" |
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Capacity |
S77 - 18 or married and of sound disposing mind Re Walkers Estate during lucid interval - ok Re Glynn the test is a legal one and not a medical one Banks v Goodfellow test laid down O'Donnell v O'Donnell no signs of manifestation of paranoid schitzophrenia at the time will was made |
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Formalities |
S78 - must be in writing and signed and witnessed Re Glynn 'X' was sufficient signature In b Cook nickname 'Your Loving Mother' Fulton v Kee assisted mark ok as long as some independent contribution Re Bravada Estate witnesses cannot gain under a will but may be a beneficiary s82 S86 - alterations. Any alteration made after execution is invalid. |
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Revocation & Destruction |
To revoke the new will must begin with a clause (Wylie) "I hereby revoke all testamentary dispositions here to before made by me and declare this will to be my last" S85 - destruction via burning, tearing or destruction by the testator or somebody in his presence and by his direction, with the intention of revoking it. Cheese v Lovejoy 2 element; act of destruction and animus revocandi. A will is automatically revoked by marriage or civil partnership |
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Constuction & Interpretation |
Extrinsic evidence can be admitted s90 & 89 -Rowe v Law if there is ambiguity on the face of the will and it is necessary to ascertain the intention of the testator Re Julian showed harshness of strict interpretation Boyes v Cooke 'armchair' principle Fitzpatrick v Collins a general intention for reading the will as a whole overrides any particular intention Thorn v Dickens "mother" left to wife, not mother |
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Intestacy |
Partial - s74 what is not provided for in the will is treated as though he had died intestate Total - s66. Rules laid out in s67-73 provide for this, and Parts 8 & 15 as introduced by the CPCROR 2010. Under s127 of CPCROC, civil partners may make an application to the court for provision from the dec'd estate. S67 - if an intestate dies leaving a spouse and no issue, the spouse will take the whole estate. If an intestate dies leaving a spouse and issue the spouse/civil partner (67B CPCROC) shall take 2/3 with 1/3 to be divided amongst issue. S73 of CPCROC allows a new s67(3) to allow the court to make an application for provision for that child taking relevant factors into account.
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Testamentary Freedom |
Freedom to disinherit one's wife and children cannot be defended on any grounds. Under s111 if the testator leaves a wife and no issue - 1/2. If childeren, wife gets 1/3. CPCROC introduces s111A. Re Cummins Estate share will be taken automatically where no gift it left S115 provides that where a gift is left, the surviving spouse must elect to take the legal right share, or will be left with gift via default. Re Urquhart legal right share not elected, so gift given even tho of no value. Provision for Children - s117, can apply for proper provision where parent has failed in moral duty. Courts will take the point of view of a prudent and just parent. Re IAC there must be a positive failure in moral duty EB v SS no failure found XC v RT by the time of death, moral duties had been discharged DS v KM diabetic, should have been provided for McDonald v Norris moral duty can be diminished with bad behaviour (Black Sheep case) |
