Legal Issues on Wills Act 1837 - Essay Example

?Legal Issues The main legal issue is whether or not Alice’s will satisfies the formal requirements for making and altering a will pursuant to the relevant provisions of the Wills Act 1837. The validity of Alice’s will has significant consequences for the appointment and dispositions contained in the will. If the will is found to be in compliance with the formalities set forth in the Wills Act, the testators will be required to give full effect to Alice’s testamentary wishes as articulated in the will. However, if it is found that the will does not satisfy the formal requirements of the Wills Act, Alice’s estate will devolve pursuant to the Administration of Estates Act 1925 (as amended) as if she had died intestate/without having made a will. Regardless of whether or not Alice’s estates pass under the rules of intestacy or as a testamentary disposition of property, Meg’s inheritance is also an issue as it appears that she died simultaneously with Alice and is survived by her son Phillip, who is presumably a minor and was a dependent of Meg’s. Thus the Inheritance (Provisions for Family and Dependents) Act 1975 may also affect the manner in which Alice’s property is divided, particularly as it relates to Meg’s inheritance. The Law, Legal Rules and Application of the Law to the Facts The formal requirements for making and/or rectifying a will are necessary for providing a method by which testators can dispose of their property as they wish in a way that either detects or prevents fraud.1 In this regard, Section 9 of the Wills Act 1837 provides that in order for a will to be valid it must be in writing, signed by the testator, and witnessed and attested to by at least two witnesses.2 It must also appear that upon signing the will, the testator intended to “give effect to the will” by his/her signature.3 On the facts of the case for discussion the signing and witnessing of the will do not appear to be an issue. Whether or not Alice intended to give effect to the will may arise since she made what appears to be changes to the contents of the will. However, the mere fact that the will was properly signed by Alice will suffice to satisfy the requirement that she intended by her signature to give effect to the will.4 The timing of the changes made to the will can be important for establishing the validity of those changes. For example, it was held in Re White that where changes were made subsequent to the making and execution of a will and were not re-signed, the testator’s previous signature cannot provide evidence that the testator intended to give effect to the revised will.5 Further guidance with respect to the effect of the changes made by Alice to the will is provided by the Wills Act 1837. Section 21 of the Wills Act 1837 provides that: No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will...6 In other words, if a will is altered prior to its execution, the alteration will be deemed to be valid. However, where the alteration is made in the absence of attestation, it is presumed that the alteration was made after the execution of the will. However, this presumption can be rebutted by evidence such as sworn witness statements.7 Nevertheless, Section 21 of the Wills Act 1837 implies that when alterations are not apparent, it can be assumed that the alterations were made prior to the execution of the will. However, where the alterations and obliterations are obvious, it is best that the testator execute the alterations in same manner as the will is executed. It was held in Re Shearn’s Goods that where the testator’s signature together with witnesses’ signatures appear in the margin or anywhere near the alterations, the alteration will be valid and admitted to probate.8 On the facts of the case for discussion there is no evidence that Alice and her witnesses acknowledged what can only be described as obvious alterations, obliterations and delineations to the will. The effect of a lack of execution of the changes to the will renders the changes invalid. As such, the parts of the will that the changes intended to replace will remain effective provided they can be read. In the event the obliterated words cannot be read, probate will be admitted with that word left out.9 However, the courts have been willing to permit the use of a magnifying glass for reading the obliterated word or words,10 or holding the document up against light to reveal the word or words obliterated.11 It appears that the obliterated word in Alice’s will can be read without external assistance and thus, the obliterated word remains valid. According to the facts of the case for discussion, Alice first bequeathed 3,000 pounds to her sister and subsequently crossed it out and wrote 5,000 pounds in ink above the crossed out sum. Assuming that the will is typed, the inked in word will only be regarded as something that the testator considered but not as something that the testator decided on. For example it was held in Re Bellamy’s Goods that where a testator’s will was written partly in ink and partly in pencil, the parts pencilled in were no more than deliberation techniques and thus were not admitted to probate.12 Likewise, the pencilled in portions of the will naming testators are also considered deliberative and not decisive for the purpose of appointing executors. At this point it can be concluded that Alice’s will does not change the original terms of the bequest for leaving 3,000 pounds to her sister and the original appointment of one of her brothers as the executor of her will. These alterations were made after the execution of the will and, in the absence of evidence to the contrary, the original dispositions and appointments remain effective and will be granted probate. Apart from the alterations to two parts of the will, there may be problems related to the manner in which those parts of the will identify executors and beneficiaries. Executors are appointed for the purpose of discharging the testator’s debts, funeral expenses and taxes and for the distribution of the testator’s property pursuant to the will once probate is granted.13 Alice does not choose among her brothers but merely states that she would like one of her three brothers to act as the executor of her will. Alice had three brothers and attempted to pencil in a narrower selection between two of her brothers: Ned or George. Having established that the pencilled in notation is not a valid alteration of the will, the original choice of one of her three brothers remains the valid clause. Alice did not choose between her brothers, but was specific in appointing only one executor. Had she chosen all three it would have been permitted under Section 114 of the Supreme Court Act 1981 which allows up to four executors or personal representatives.14 Although Alice does not choose between her brothers, the court is at liberty to choose an executor even where one is not appointed by the will or where an appointed executor dies before the will is granted probate and a replacement executor was not chosen. The only real requirement for acting as an executor is that the executor be ready, willing and able to act as the executor of the will.15 It therefore follows that even if Alice’s failure to name an executor is found to be an ineffective clause for the appointment of an executor, the courts may nonetheless appoint one. Ned, Jack and George may determine among themselves which of them should act as the executor of Alice’s estate and should apply to the courts for an official appointment. The difficulty with the disposition of 3,000 pounds to Alice’s sister is the fact that Alice had two sisters. By refusing to identify which of the sisters she intended to leave the 3,000 pounds to, the question is whether or not there was a typographical error or whether or not the executors can choose between Alice’s sister or whether or not the gift fails for lack of certainty and thus devolves to Alice’s estate as if she did not dispose of the 3,000 pounds in her will. It would appear that since Alice clearly intended to transfer 3,000 pounds to at least one of her sisters, it falls within the law of equity. In this regard, the courts would only need to be satisfied that the class of beneficiaries can be narrowed down to such an extent as to make it administratively possible to distribute the funds among the class of beneficiaries.16 Certainly identifying the two sisters is administratively workable, and so is the distribution of 3,000 pounds among two beneficiaries. It can therefore be argued that at the very least, the gift of 3,000 pounds will be divided equally between the two sisters. With respect to the disposition of shares to “my dear Jack”, the question that necessarily arises is whether or not the Jack for whom the shares are intended is Alice’s brother Jack or some other person Jack. It is not known whether or not the will was prepared by a solicitor and in that case one would expect that the error would have been caught and corrected. It may be presumed that Alice prepared the will and in doing so, she made an error. However, the courts have been entirely strict about following the letter of the will and complying with the statutory requirements for validating and enforcing a will or a rectified will. For example in Marley v Rawlings the court was aware that the testators, a married couple, executed mutual wills clearly intending that their estates be inherited by a beneficiary who had lived with them as a son, but was not formally adopted by them. In executing their wills, the testators mistakenly signed each other’s wills rather than their own wills.17 The validity of the wills was challenged. However the Court of Appeal ruled that although there was no doubt that the testators intended to leave their estate to their informally adopted son: Certain knowledge is not what determines the outcome of this appeal. The answer is contained in the law relating to the making and rectification of wills.18 It would therefore appear that the courts are more concerned with form as opposed to substance in the construction of the law relative to the validity of wills and its various appointments and dispositions. Alice may know any number of Jacks that are dear to her and there is no way for this to be ascertained with a satisfactory degree of certainty. As previously stated, a class of beneficiaries must be reasonably ascertainable to the extent that the gift or bequest is administratively workable.19 The difficulty for the executors is that should they be at liberty to determine the identity of Jack as provided for in the will, and in doing so transfer the shares to that Jack, they would be vulnerable to law suits in the event other persons claiming to be the Jack in the will emerge demanding the shares. Moreover, since Alice has referred to her brothers and sister throughout the will, there is no explanation for her failure to identify Jack as her brother, unless it was a deliberate omission meant to refer to a Jack who was not her brother or an error. However, given the court’s strict compliance with the formality requirements of the Wills Act 1837, it is unlikely that they will imply that “my dear Jack” was erroneously stated and was really meant to refer to Alice’s brother Jack. It would have been different if Alice had bequeathed the gift to “my dear brother” as there are only three brothers and the executor could have simply divided the shares among the three brothers. The phrase “my dear Jack” cannot be narrowed down as easily and there is no way of knowing how many Jacks may fit that class of beneficiaries. In this regard, this part of the will fails since it is not administratively workable. If the court decides that it can be inferred that Alice was referring to her brother Jack, the gift of 2000 shares is a valid gift since Alice did have 2000 pounds when the will was executed. It does not matter that since executing the will, Alice sold 500 shares and just before her death received a further 200 shares as a rights issue. Section 3 of the Wills Act 1837 provides that any property can be disposed of by will, including future property. Specifically, Section 3 of the Wills Act 1837 provides that a testator may dispose of any property real or personal in a will including: Other real or personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.20 Thus, the wording of Section 3 of the Wills Act 1837 implies that the nature of property bequeathed in a will may change after the execution of the will, but such changes will not affect validity of that particular disposition provided it remains a part of the testator’s estate. In other words, the initial disposition may have contemplated a specific value or size of a gift. However, at the death of the testator, the property’s value or size may have changed, but it would not invalidate the gift provided the will complies with the formal requirements for making a will. As a result, should the courts agree on the true identity of “my dear Jack”, Jack would be entitled to claim the 1500 shares remaining as well as the subsequently acquired 200 shares. The gift of the house at the Gables to Meg may also suffer from the same degree of uncertainty that the gift to my dear Jack suffers. Assuming that the gift to Meg is determined to be a gift to Alice’s daughter Meg, the doctrine of lapses arises. The doctrine of lapses arises in instances where a gift fails for want of an heir or the failure of a contingency obligation or occurrence.21 With respect to a gift failing for want of an heir, this typically occurs when an heir dies before the testator.22 When a gift fails it will typically fall to the residuary estate if there is a provision in the will for the residuary estate.23 In the event the will does not have a residuary clause, this part of the will is treated by the rules of intestacy and will devolve under the Administration of Estates Act 1925. Under the Administration of Estates Act 1925, the house in question and its effects and contents will pass to the next-of-kin. The next-of-kin in this regard is the testator’s spouse. However, since Alice died a widow, the next-of-kin would be her children and as far as the facts reveal, Alice had only one child and that child, Meg, died in the car crash with Alice. Thus under the rules of intestacy, the next-of-kin will be the remainder issue, which is Phillip.24 There is an exception to the doctrine of lapses in that where two persons die simultaneously, the younger person is always determined to have died last.25 As a result, it will be assumed that Alice died before Meg and Meg therefore inherited Alice’s house pursuant to the terms of Alice’s will. However, Alice specifically stated that should her death coincide with Meg’s the house and its contents and effects were to be given to the Donkey Sanctuary charity. Thus the assumption that Meg died after Alice is of no real consequence, since a contingency of the gift of the house to Meg was that she did not die before Alice or that her death did not coincide with Alice’s death. Arguably, since Meg and Alice died in the same car crash, Meg’s death coincided with Alice’s and thus the doctrine of lapses arises with the result that the gift of the house to Meg fails. It is not known whether or not Meg and Phillip lived with Alice. Assuming that Phillip and Meg lived with Alice, Phillip, a minor child and with an absent father (assuming his father’s identity is even known), he may have been a dependent of Alice’s, and as such, Phillip may apply for a share of Alice’s estate. The Inheritance (Provisions for Family and Dependents) Act 1975 allows dependents who have not been provided for in a will or who may have not inherited as a result of the operation of the rules of intestacy to claim a share of the testator’s estate. Phillip may make such a claim if he was partially or wholly dependent on Alice for his financial needs.26 Conclusion Based on the authorities and the statutory laws discussed above it can be concluded that the will is required to meet the formal requirements of the Wills Act 1837 and the courts will insist on strict compliance. In this regard, while the will itself appears to have been properly executed, subsequent amendments do not appear to have met the requirements for alteration of the will. In this regard, attempts to change the amount of money given to Alice’s sister will not be granted probate. Instead, the original gift of 3,000 pounds will be granted probate. Similarly, the appointment of one of Alice’s brothers as an executor will be the operative clause, although the court may intervene to appoint up to 4 executors. The gifts of the house and the shares are a bit more problematic since they do not adequately identify the heirs. The gift of the shares seemingly applies to Alice’s brother Jack, but is not specific enough to rule out the possibility of another Jack. A similar problem arises with respect to the gift of the house to Meg. In this regard, it is expected that the house and the shares will necessarily fall to the residuary estate. If there is no residuary clause in the will, the house and the shares will devolve under the laws of intestacy and will therefore be divided among Alice’s next-of-kin who by deduction is Phillip, her grandson. In the event the court decides that the shares were intended to be settled on Alice’s brother Jack, Jack is at liberty to take all the shares regardless of the fact that there are no longer 2,000 shares. If the court decides that the gift to Meg is intended to go to Alice’s daughter Meg, the doctrine of lapses arises since Meg did not survive Alice. Therefore the house will go to the Donkey Sanctuary. Bibliography Administration of Estates Act 1925. Barlow, J. S.; King, L. C. and King, A. G. (1990). Wills, Administration and Taxation: A Practical Guide. London, UK: Sweet and Maxwell. Ffinch v Combe ]1894] P 191. Harpum, C.; Bridge, S. and Dixon, M. (2012). Megarry & Wade: The Law of Real Property. London, UK: Sweet and Maxwell. Inheritance (Provisions for Family and Dependents) Act 1975. Kerridge, R. (2011). “Testamentary Formalities in England and Wales.” In Creid, K. G.; Dewall, M. J. and Zimmermann, R. Z. (Eds.). Comparative Succession Law: Testamentary Formalities, Vol. 1. Oxford, UK: Oxford University Press. Marley v Rawlings [2011] 2 All ER 103. Re Bellamy’s Goods [1866] 14 WR 501. Re Hamer’s Estate [1943] 113 LJP 31. Re Hay’s Settlement Trusts [1982] 1 WLR 202. Re Ibbetson [1939] 2 Curt 337. Re Shearn’s Goods [1880] 50 LJP 15. Re White [1991] Ch. 1. Supreme Court Act 1981. Wills Act 1837. Read More