Law of Succession - Case Study Example

158057   When deciding whether the 1967 will is still valid it is necessary to examine the ways in which a will can be revoked. According to the Wills Act 1837 s20 a will can only be revoked by ‘another will or codicil’ or ‘by destruction thereof’. Section 20 goes further on to state that a will can be revoked ‘by some writing declaring an intention to revoke the same and executed in the manner in which a will is herein-before required to be executed’. When looking at the destruction of the will s20 requires that the ‘burning, tearing or otherwise destroying’ of the will must be done by the testator or ‘by some person in his presence and by his direction’ with the intention of revoking the will. For the revocation to be complete the testator must destroy the whole will. Any parts that remain intact can be submitted for probate and may be enforceable. However in the case of Re Adams (Deceased)1 where the testator had obliterated the signatures on the will so effectively by overscoring with a pen the courts applied s21 of the Wills Act stating that although the signatures had not been physically removed2 from the will they had been so effectively obliterated that they were illegible. The court held in this case that as the signatures were not apparent to the eye a material part of the will had been destroyed. The court stated that the intention of the testatrix to revoke should be upheld as a material part of the will had been destroyed3. If the beneficiaries of the will can establish that at the time of the destruction of the will the testator was not of sound mind then the revocation would be ineffective4. For the destruction to be effective there is a presumption that the testator destroys it animo recovandi. If there is evidence to suggest that the person was not of sound mind when they destroyed the will then the presumption of revocation is not proved and the will is deemed to be valid. Difficulties would arise in respect of the 1990 codicil that was added to the will as there is no certainty with regards to the beneficiary. In the codicil Ariadne left £5,000 to ‘Nanny’. It is stated above that none of the persons employed by Ariadne to look after the children was referred to as Nanny so it is unclear who Ariadne intended to benefit from the codicil. This ambiguity could diminish the value of the estate as several applicants may feel that they are entitled to the money as they had cared for the twins. In order to clear up the ambiguity the court will look for extrinsic evidence to determine whom Ariadne intended the money to go to. Direct extrinsic evidence is adduced from what the testator said whereas as circumstantial extrinsic evidence is adduced from the circumstances and facts known to the testator at the time the will or codicil was executed. Extrinsic evidence is only allowed to be adduced where there is an ambiguity in the will or codicil. In the case of Nasmyths Trustees v NSPCC5 the court allowed extrinsic evidence to be adduced. In this case the testator has expressed a wish to live some of his estate to the NSPCC. When first established the association was known as the London Society for the Prevention of Cruelty to Children and changed its name by Royal Charter in 1895. The courts were asked to decide whether the disposition to the NSPCC was valid as there was a degree of ambiguity due to the name change of the association. The court held that the extrinsic evidence led to the conclusion that the testator intended the LSPCC to inherit the amount decreed. Similarly in Abbott v Massie6 intrinsic evidence was adduced to establish who the testator was referring to when he mentioned Mrs G in his will. The court’s can rely on direct extrinsic evidence if there is a latent ambiguity. Such evidence has been adduced in Lord Cheyney’s Case7 to decide which of two Johns was meant by the testator when he mentioned in his will ‘my son John’. Similarly direct evidence was adduced In the Estate of Hubbard8 to determine which granddaughter the testator was referring to when there were two possible granddaughters. In this case the court were able to aver from the fact that one of the granddaughters was living on the estate that the testator intended that she should be the one to inherit. It would seem from the above that in the case of the codicil in respect of the Nanny the courts might infer that the money should go to the person who had been in charge of the children at the time of the making of the codicil. There could be some confusion as there was a subsequent au pair who had lived with the family the year previously who was called Nancy. It may well be that given the uncertainty the courts may decide not to award the money to any of the nannies that have been employed by Ariadne and declare this section of the will to be intestate. In the case of Re Jackson9 the courts reached the conclusion that if there had only been two legitimate nephews by the name of Arthur Murphy it would have been impossible to determine the testatrix’s intended beneficiary. In this case though the extrinsic evidence was capable of identifying an illegitimate nephew of the same name and the evidence of the close contact that had existed between the testatrix and the illegitimate nephew before her death was sufficient for the court to conclude that he was the intended recipient. In the scenario above it states that Ariadne called for her will whilst she was in hospital with depression and set fire to the will. Although the nurses present stamped the fire out the signature was no longer on the will. It could be argued that Ariadne intended the complete destruction of the will and therefore because the signature was no longer on the will that her actions amounted to a revocation of the will. However, as mentioned above her daughters could maintain that at the time of setting fire to the will she was not of sound mind, which would mean that the 1967 will would stand. This would mean that the entire estate would be divided amongst her children equally. It would also mean that the codicil would remain valid and it would be the duty of the court to attempt to decipher from the extrinsic evidence that the intended recipient would be. If they cannot decide from the evidence the money would be returned to the estate and be divided amongst the children. Under the rules of survivorship Charles would be entitled to the house in which they lived as a family, despite the fact that they have lived separately for many years if the 1967 will was deemed to be invalid by the destruction of the will. The Law Reform (Succession) Act 1995 s1(1) allows for the surviving spouse of an ex-partner to inherit the property under the rule of succession providing that the surviving spouse outlives the ex-partner by 28 days. In essence this means that unless Ariadne affects a severance from Charles he would be entitled to inherit the property under the doctrine of survivorship. If Ariadne and Charles had been divorced or had affected a judicial separation then Charles would not be entitled to benefit under the rules of intestacy. Charles could apply, however, under the Inheritance (Provision for Family and Dependants) Act 1975 for a share of the estate in respect of the matrimonial home. If the home was held as a joint tenancy then the right of survivorship would give Charles an entitlement to the home. He might also be entitled to a statutory legacy from the estate which is set at present at £125,000. Charles would also be entitled to the personal chattels of Ariadne which are defined under s55 of the Administration of Estates Act 1925. In Carr Glynn v Frearsons10 [l999] l FLR 8the testator left a half share of the house to the plaintiff. Upon the death of the testator it was discovered that the house had been held on a joint tenancy and the testator had failed to sever the tenancy, the court held that the right of survivorship entitled the surviving partner to inherit the property in its entirety and the gift to the plaintiff failed. In order for Ariadne to affect a new will she either has to add a codicil to the existing 1967 will or to destroy the old will entirely and make a new one. If Ariadne destroys the old will the codicil will also be ineffective as the revoked will must still be in existence for the codicil to remain valid11. In the circumstances as the previous will was burned and the signature removed from the will it would probably be better for Ariadne to destroy the old will in its entirety and make a new will. Had the old will not been damaged it would have been simpler for Ariadne to have added a codicil to the1967 will. This is the last Will and Testament                                          - of me - ARIADNE CARTER                                                           of Dunroamin Hall,                                                          Derbyshire DE1 1AC       I, Ariadne Carter, a citizen and resident of Derbyshire County, Dunroamin Hall, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument as my Last Will and Testament. I HEREBY REVOKE all former Wills and testamentary dispositions made by me under the law of England and Wales and declare that the proper law of this my Will shall be the law of England and Wales   I APPOINT my daughter MILLIE and my friend JOHN BROWN to be the executors and Trustees of this my Will (hereinafter called My Trustees which expression shall include the Trustee or Trustees for the time being thereof) I direct that all debts which I am legally obligated to pay at the time of my death, including my last illness and funeral expenses, taxes and costs of administration of my estate shall be paid as soon as practicable after my death. From time to time I may prepare a written memorandum regarding the disposition of all or part of my tangible personal property which I might own at the time of my death. I direct that, notwithstanding any other provision of this Will, my Personal Representative distribute such tangible personal property as directed in any memorandum if such memorandum is signed by me, dated, references this Will, and is associated with a copy of this Will. If more than one such memorandum is located, only the memorandum bearing the latest date shall be valid. If no such memorandum has been located within ninety (90) days following the appointment of my Personal Representative, it shall be presumed conclusively that no such memorandum exists, even if a purported memorandum as described herein later is produced I devise and bequeath all the rest, residue and remainder of my property of whatsoever kind or character and wheresoever situate, whether presently owned or hereafter acquired by me, to Willy, Jilly, Millie, Lilly and John Brown.  I bequest £250,000 to my grandson Willy and £250,000 to my granddaughter Jilly to be given to them if and when they attain the age of 18. If at the time of my death, my friend John Brown is still at the Hall I wish for him to receive £10,000 and the motor car, whichever vehicle this might be at the time of my death. Dunroamin Hall is to be held on trust for my daughter Lilly for as long as she wishes or is capable of living there and to pass to my grandchildren Jilly and Willy equally and absolutely upon either the death of Lilly or her discontinued residence at the Hall. The residue of the estate is to be left to my daughter Millie. In the event that should not survive me, then in that event, I devise and bequeath all the rest, residue and remainder of my property of whatsoever kind or character and wheresoever situate, whether presently owned or hereafter acquired by me, to the children of Millie equally. In the event any property or interest in property passing under this Will, by operation of law or otherwise, by reason of my death, shall be encumbered by a mortgage or lien, or shall be pledged to secure any obligation (whether the property or interest in property so encumbered or pledged shall be owned by me jointly or individually), it is my intention that such indebtedness shall not be charged to or paid by my estate, but that the devisee, beneficiary, or joint owner taking by survivorship, shall take such property or interest in property subject to all encumbrances existing at the time of my death. IN TESTIMONY WHEREOF   I have to my Will, which is written upon this and all preceding pages of paper, subscribed my name on this         (date) day of                  (month),            (year). Signed,                                            SIGNED BY Ariadne Carter , as their Will, in the presence of us, present at the same time, who at their request, in their presence and in the presence of each other have subscribed our names as witnesses:   1. Signature of Witness       Print Name       Address       Phone       Occupation 3. Signature of Witness       Print Name       Address       Phone       Occupation Bibliography Borkowski, A, Textbook on Succession, 2nd Ed, 2002, Oxford University Press European Commission Green Paper - Succession and wills {SEC(2005) 270} Meadway, S L, Waterworth, M, Sherrin, C.H, Barlow, R.F.D & Wallington, R.A, Williams on Wills, 2006, Butterworths Law Sherrin, C.H. & Bonehill, R.C, The Law and Practice of Intestate Succession - Modern Legal Studies, 2004, Sweet & Maxwell They dont always get what they want, New Law Journal,155 NLJ 448,25 March 2005 Wills and probate update, New Law Journal 156 NLJ 1591,20 October 2006 www.opsi.gov.uk www.lexisnexis.com www.westlaw.com Table of Cases Abbott v Massie (1796) 3 Ves. 148 Carr Glynn v Frearsons [l999] l FLR 8 Ffinch v Combe [1894] P. 191 Hobbs v Knight (1838) 1 Curt. 768 In the Estate of Hubbard [1905] P 109 Lord Cheyney’s Case (1590) 5 Co. 68a Nasmyths Trustees v NSPCC 1913 S.C. 412 1913 1 S.L.T. 16 1912 Re Adams (Deceased) [1990] Ch. 601 [1990] 2 W.L.R. 924 [1990] 2 All E.R. 97 [1990] 2 F.L.R. 519 (1990) 134 S.J. 518 Times, December 12, 1989 Re Donisthorpe [1947] W.N. 226 1947 Re Jackson [1933] Ch 237 Rogers v. Goodenough (1862) 2 Sw. & Tr. 342 Table of Statutes Administration of Estates Act 1925 Inheritance (Provision for Family and Dependants) Act 1975 The Law Reform (Succession) Act 1995 Wills Act 1837 Read More