succession – failed gifts

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SUCCESSION – FAILED GIFTS INTRO: If only a single gift if invalid then the rest of the gifts in the will take effect as set out in the will. The property which was the subject matter of the failed gift with then be bequest-less. It will fall into the residue to be taken by the residuary B. If there is no residuary B, there’s partial intestacy of the residue, which will be dealt with by normal rules of intestacy. REASONS FOR FAILURE: B/spouse is attesting witness B predeceases the T Dissolution/annulment of D’s marriage to B causes it to fail Gift fails by ademption Gift abates Gift fails for uncertainty B’s guilty of murder/manslaughter of D B disclaims. B OR SPOUSE IS ATTESTING WITNESS GENERAL RULE: S15 Wills Act 1837: The attestation will be valid, but the gift ‘utterly null & void’. Deprives them of their benefit and defeats T’s intention. Re Bravda T made will @ home, leaving estates to daughters. 2 witnesses, then asks daughters to sign to ‘make it stronger\/ Girls signed under ‘witnessed by’. Reflection: Is this drastic rule really justified? LIMITS: Privileged will: Rule doesn’t apply here. Superfluous attesting W to a formal will If without W the will is duly executed, it doesn’t matter. However, say there are 3 W’s and more than 1 is a B then the general rule is applicable and none of them may take under the will. S1 Wills Act 1968 Only need 2 independent witnesses to each gift. Re Bravda Father asks daughters, who are B’s, to sign after 2 witnesses to make will ‘stronger’. Russel J: To not allow the girls to have the gift would be monstrously unfair. B signed but not as witness Rebuttable presumption that anyone who signs the will other that T has signed as an attesting witness. B not spouse of witness when will executed. B who marries an attesting W AFTER execution may take benefit under it.

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Page 1: SUCCESSION – FAILED GIFTS

SUCCESSION – FAILED GIFTS

INTRO:If only a single gift if invalid then the rest of the gifts in the will take effect as set out in the will. The property which was the subject matter of the failed gift with then be bequest-less. It will fall into the residue to be taken by the residuary B. If there is no residuary B, there’s partial intestacy of the residue, which will be dealt with by normal rules of intestacy.

REASONS FOR FAILURE: B/spouse is attesting witness B predeceases the T Dissolution/annulment of D’s marriage to B causes it to fail Gift fails by ademption Gift abates Gift fails for uncertainty B’s guilty of murder/manslaughter of D B disclaims.

B OR SPOUSE IS ATTESTING WITNESSGENERAL RULE:S15 Wills Act 1837: The attestation will be valid, but the gift ‘utterly null & void’. Deprives them of their

benefit and defeats T’s intention.

Re BravdaT made will @ home, leaving estates to daughters. 2 witnesses, then asks daughters to sign to ‘make it stronger\/ Girls signed under ‘witnessed by’.

Reflection:Is this drastic rule really justified?

LIMITS:Privileged will:Rule doesn’t apply here.

Superfluous attesting W to a formal willIf without W the will is duly executed, it doesn’t matter. However, say there are 3 W’s and more than 1 is a B then the general rule is applicable and none of them may take under the will. S1 Wills Act 1968

Only need 2 independent witnesses to each gift. Re BravdaFather asks daughters, who are B’s, to sign after 2 witnesses to make will ‘stronger’.Russel J:

To not allow the girls to have the gift would be monstrously unfair.

B signed but not as witnessRebuttable presumption that anyone who signs the will other that T has signed as an attesting witness.

B not spouse of witness when will executed.B who marries an attesting W AFTER execution may take benefit under it.

Gifts on trustOnly applies to beneficial gifts, so gifts as a trustee are fine.

Gift made or confirmed by another will/codicilGeneral rule doesn’t apply if:

a) Gift to B is contained in a will/codicil, which wasn’t attested by B/B’s spouse, even though some other document was.

b) Gift to B’s contained in a doc which was attested by B/B’s spouse, but this document ws confirmed by a will/codicil they didn’t attest.

Basically you must be able to point to a document under which you can claim, which nether of you have attested.

Witness/spouse takes under secret trust

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If X (witness/spouse) takes the property as held on secret trust for him by Y, this is fine because X takes by virtue of Y’s taking under the will.

LAPSEDefine: A gift by will lapses and fails if B dies before T/ a corporate body taking under the

will is dissolved before T’s death.Doctrine of lapse cannot be excluded by declaring so in the will. But he may make other provisions for if the original B predeceases him, e.g.: goes to B’s personal representatives.

Gifts to joint tenants:No lapse can occur unless they ALL die before T. If words of severance in the will, they will take as common, and the gift will lapse proportionate to dead’s share.

Class gift:Doesn’t apply to a class gift made to persons who are to be ascertained at T’s death. E.g.: ‘a gift to all my children as tenants in equal shares’. If one of T’s kids predeceases him there’s no lapse because they were never a member of the class.DETERMINE whether this is a CLASS gift, though. It can’t be specific, must be general.

Confirmation of willIf T makes will with gift to X, then after death makes a codicil confirming this will, it doesn’t prevent the gift from X from lapsing. The will is read as if it had been executed at time of conformation.Re HardymanT gave 5000 on trust for cousin for life then ‘his wife’ for life with remainders over, Will referred to cousin’s wife living @ date of will who then died. T knew of death and made codicil confirming will. After T’s death, cousin married again.

Confirmation meant will referred to any woman C may marry and not the dead first wife. The will is one which T expressed her wishes as they were @ the date of the codicil. Codicil republishes the will @ that date.

Re Moore This is a flexible instrument, rather than a rigid formula, for effecting T’s intentions by ascertaining

them down to the latest date. Unclear as to whom survived whom:S184 LPA 1925

Presumption that the eldest died first.

Hickman v PeacyBomb.

S184 applies even where the deaths appeared simultaneous or consecutive.

S46(3) Administration of Estates Act 1925 If an intestate and his younger spouse die in circumstances where cant determine whom survived

whom, the younger spouse is presumed not to have died first.

EXCEPTIONS TO LAPSE:S33(1) Wills Act 1837

Where T’s will contains a devise or bequest to a child/remoter descendant of T and the intended B dies before the T, and this child/remotor leaves behind a surviving child.

Grandchildren shall take in equal shares if more than one, what parent would get. Includes illegit children.

Case Law exceptions:Stevens v King

T makes a gift to C in his will, in discharge of a moral obligation recognised by T in his will, which still exists at T’s death, then it passes to C’s estate should be predecease T, because court infers that was T’s intention.

Ambit uncertain (PERRY & KERRIDGE)

T’S MARRIAGE TO B IS DISSOLVED/ANNULLEDIf T divorces etc after will made, and doesn’t remarry or write a new will.Death post 1996 –

Page 3: SUCCESSION – FAILED GIFTS

S18(2) Administration of Justice Act 1982Response to - Law Reform Committee’s Report – THE MAKING AND REVOCATION OF WILLS

Recommended law change so divorced spouse be treated as having predeceased T.

Re Sinclair Hub (T) made will leaving money to cancer fund should his wife predecease him. Divorced, neither

remarried. The gift would lapse, which they interpreted as meaning ‘fail’, rather than to ‘fail with same

consequences as if former spouse had died’.Reflection:Case was unsatisfactory. Law Commission asked to look into it. Law Reform (Succession) Act 1995Response to Law commissions Family Law: The Effect of Divorce of Wills.

Where there’s a divorce/annulment, the former spouse, FOR MOST PURPOSES, is deemed to have pre-deceased T.

o Revokes former spouses appointment as donnee/appointer of a power of appointment/ executor/trustee.

Further reflection:Why complicate things? Why not just apply a rule for ALL purposes rather than selective ones?

ADEMPTIONDefine: Property left in will no longer belongs to T/is substantially changed at his death.

Where this happens to a specific gift, it is deemed ‘adeemed’, and the gift fails.

Re SlaterReference to shares in Lambeth Waterworks Company, which became Metropolitan Water Board

A change in only form or name does notcause ademption A change in substance will. Here it differed in substance because it was in a different concern, and

operating over a much larger area.

Specific gifts speaking from T’s death aren’t subject to ademption. Ademption only applies where the subject matter of the gift is to be ascertained at some time prior to death, e.g.: ‘cars I own at date of will.’ e.g.: ‘cars which I own at the date of my death’ fails if he doesn’t have specific gifts at death.

General gifts:Gifts of cash amounts, or general bequests aren’t subject to ademption. If there’s not enough cash in T’s estate to fulfil bequest then it will be made up from any residue.

Intention:Usually said it occurs regardless of intention for it to do so or not.

Grice v FinchOVERTURNED BY HARRISON500 left by T out on mortgage. On death P called in mortgage money and spent it on shares. Held – essential characteristic is SUM, so no abatement.HARRISON – this is wrong. It’s not the true construction of the will.

Harrison v JacksonT left B’s specific stock in A and other stock. Under trustee’s names at the time of the will, and he intended to change the names. Left the residue to trustees on other trusts. The stocks were on books of railway under trustee’s names, and were never changed. Shares bought back by company, T reinvested money into another railway in name of trustees and executors named in will.

Clearly ademption may defeat the intention that T would have expressed had he appreciated how the doctrine operated, although it was clear T intended to change names. So is it a rule of law rather than a rule of construction?PERRY & KERRIDGE think viewing it as a rule of construction make it easier to reach the just result in a more open and honest way.

Irrelevant what the money was spent on. It is not the shares it was originally, and thus there’s been ademption.

Re Lewis RW

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T is entitled to insert provision in will making it clear that he wishes B to inherit his shares in a particular company/the investments which represent those shares if they’ve been converted into other holdings.

AVOIDING ADEMPTIONWhere T has no responsibility over the change in assetse.g.: lose capacity, and grants power of attorney to someone who doesn’t know the contents of the will/the specific gift. Re DormanBefore losing capacity, referred to account #X, which was then closed by attorney & pened another one, transferring all money from the account to this one. Same type of account, same branch.

No change of substance.

Arguable that no ademption should happen if old shares can be traced into new ones.

Banks v National Westminster BankWENT AGAINST DEVELOPMENTS AS MADE IN DORMAN AND SUBSEQUENT CASES.T leaves daughter B ‘all her share and interest’ in main residence – specified as 53 Keston Avenue. Residue left to B & brother.D unable to manage own affairs, so B appointed under enduring power of attorney. B sold main residence & spent money on care for mother/invested majority of proceeds. Known of terms in D’s will. B claimed house adeemed.B argued ‘all my share and interest’ be interpreted as incl. proceeds of sale of property.

Ademption because decision taken lawfully and properly. Proceeds of sale fell into residue.

Jenkins v JonesIt held that the absence of relevant knowledge removed from the testator the opportunity to amend the will. The legatees were, therefore, entitled to the proceeds of sale of the house

If you lack authority then there’s no ademption Lack of knowledge doesn’t prevent ademption, if it’s authorised

TracingCan avoid by intelligent drafting, e.g.: Leave 5000 of D stock OR IT’S PROCEEDS. It’s proceeds can be identified by tracing. Re Reeves3 ½ yrs left on lease. Left ‘all interest in present lease on no1 Chesterfield st’. Renewed lease and made codicil reaffirming.

Bequeathing ‘present lease’ rather than specific dates meant no abatement.

ABATEMENTDefine: T dies with debts but doesn’t make adequate provision for their repayment in will.S34 Administration of Estates Act

Sets out circumstances of how debts are to be paid Assets left as gifts may be used to do so.

UNCERTAINTYSame rules of certainty apply for gifts in wills as for trusts:

1) IntentionDid you intend to leave a gift?

2) BeneficiaryWho are you intended to give the gift too (relevant where there’s a group)

3) Subject matterWhat are you giving?

B IS T’S CRIMINAL KILLERForfeiture Act 1870

Abolished rules regarding forfeiture of all property and gifts made to B/assets passed through intestacy. Left no alternative rules in place.

Forfeiture:

Page 5: SUCCESSION – FAILED GIFTS

Forfeiture Act 1982Private members bill, rather than parliamentary council.Define: Killer can’t receive under T’s will/through intestacy. Any gifts going to tem fail. Includes those

unlawfully aided, abetted, counselled or procured (S1(2))Public policy doctrine (S1(1)) to replace void : ‘Someone cannot benefit from their own wrong’

Can still claim under IPFDA.

KILLER NEEDN’T BE CONVICTED OF THE CRIMINAL OFFENCERe SIgsworth

Rule applied where alleged killer committed suicide before any criminal proceedings.

Dunbar v PlantWhen suicide was illegal, couple had suicide pact. Eventually he succeeded and she didn’t. Had joint tenancy and she claimed right of survivorship meant she gets full beneficial interest in the house.

Public policy didn’t require forfeiture, or prosecution of survivor. The Act allows courts a degree of flexibility where public policy requires a more sympathetic approach.

Dissenting judge: Wrong that criminal should benefit from criminal act.

DEATH BY DANGEROUS DRIVINGNo example of forfeiture’s application here.Gray v Barr