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Chapter

This chapter is concerned with the various ways in which succession to property may occur on death, other than by intestacy or by a will executed under s. 9 of the Wills Act 1837. The subject-matter can be divided for the purposes of exposition broadly into two categories: alternative wills, and alternative entitlement. Alternative wills include privileged wills and statutory wills. Alternative entitlement includes nominations, donatio mortis causa, constructive trusts, and proprietary estoppel. Many of the alternative succession mechanisms considered in the chapter are potentially difficult. Most of them are by definition exceptions to the formality requirements considered in Chapter 5. That said, most mechanisms of ‘alternative’ succession have a clear rationale and are appropriately contained.

Chapter

This chapter addresses family provision, with particular reference to the Supreme Court’s decision in Ilott v The Blue Cross. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain persons can apply for financial provision out of the deceased’s estate on the grounds that the deceased’s will or intestacy (or a combination of the two) does not make reasonable financial provision for the applicant. The persons entitled to apply are the deceased’s surviving spouse or civil partner, former spouses or civil partners who have not remarried or entered a subsequent civil partnership, children, children of the family, dependants, and cohabitants. The remainder of the chapter covers the powers of court to make orders; the ‘standards’ applicable to applicants and the ‘matters’ which the court must take into account in applications for an order under the 1975 Act; and anti-avoidance provisions of the 1975 Act.

Chapter

This chapter begins by discussing s. 9 of the Wills Act 1837, which continues to govern the execution of wills in English law. Section 9 provides that no will shall be valid unless: it is in writing, and signed by the testator, or by some other person in his presence and by his direction; it appears that the testator intended by his signature to give effect to the will; the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and each witness either attests and signs the will or acknowledges his signature. The remainder of the chapter covers the question of reform, incorporation, the solicitor’s duty of care, and deposit and registration.

Chapter

This chapter considers the concept of revocation. Revocation is literally the action of ‘calling back’, in the sense of rescinding or annulling. It is a fundamental characteristic of wills that they are revocable wholly or partially at any time before a testator’s death. The chapter also considers topics related to revocation: alterations, revival, and republication. A will may be revoked by four different methods: by marriage or civil partnership; by another will or codicil; by a duly executed writing; and by destruction. Revocation by marriage is governed by s. 18 of the Wills Act 1837. A testamentary gift to a spouse will fail if the marriage/civil partnership subsequently ends in divorce/dissolution or nullity, but strictly this is not a method of revocation.

Chapter

This chapter provides an introduction to wills. A will or testament is the declaration in a prescribed manner of the intention of the person making it with regard to matters which he wishes to take effect upon or after his death. The general effect of a will is that the legal interest in the deceased’s estate passes to his personal representatives, while the beneficiaries obtain a form of equitable right in it. The chapter discusses the long history of the will in English law; contracts relating to wills; mutual wills; secret trusts, other constructive trusts, and proprietary estoppel; the content of wills; and the will as a social document.

Chapter

This introduction provides an overview of contracts and the law of contract. It first explains what the law of contract is about and why it matters before discussing the tasks of contract law. It then considers the role of debates in contract law, unity and diversity in contract law, and central issues in contract law. It also examines the main perspectives about contract that have influenced English law, including perspectives that used to be historically important. In particular, it explores the notions of bargains and the will. The chapter goes on to address two very different understandings of contracts: one that sees it primarily as a bundle of rights, and one that sees it as a relationship between the parties.

Chapter

This chapter is concerned with the arrangements which people can make to choose who will benefit from their property after their death. It has been said that only two things are certain in life: death and taxes. The two are linked in another way, because death is an occasion on which the state levies taxes, primarily through inheritance tax. The tax treatment of inheritance arrangements is important and has considerable influence on the way in which people arrange their affairs. Moreover, the Law Commission has consulted on some wide ranging changes to the rules governing wills, on the basis that law needs to be updated to improve clarity, bring it up to date, and make it workable. Hence this chapter makes references to their proposals for reform.

Chapter

6. Formality, Perpetuity, and Illegality  

Trust Creation and Public Policy I

Titles in the Casebook on series provide readers with a comprehensive selection of case law extracts for their studies. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. This chapter observes that there is no formality for the inter vivos creation of an express trust; considers the formalities relating to the testamentary creation of an express trust and examines how secret trusts and mutual wills bypass testamentary formality requirements; examines the formalities required for dealings with equitable interests under trusts and determines whether a dealing with an equitable interest under a trust is a ‘declaration’ of a subtrust or an outright ‘disposition’ of the equitable interest; and considers when a trust will be void for reasons of public policy, including on grounds of perpetuity or illegality. It shows that the traditional justification for formality requirements is the prevention of fraud, but it is arguable that their most significant use has been as a basis for raising taxes.

Chapter

This chapter discusses the Roman law of inheritance. It covers intestacy; making a will; heirs; legacies; testamentary freedom; the failure of wills, heirs, and legacies; and codicils and trusts. The importance of inheritance as a means by which property can be acquired is obvious. A Roman citizen might easily pass through life untouched by the rules, say, of usucapion or accessio, but he could not escape the operation of the law of inheritance (or at least his estate could not when he died). And he would often have inherited property himself on the death of family members or friends. Moreover, inheritance, unlike most other forms of acquisition of property, involved the transfer of the whole of a person’s property.

Chapter

This chapter first considers the various types of gift to which beneficiaries under a will may be entitled. The basic classification of testamentary gifts is into legacies and devises. Legacies are gifts of personalty; devises comprise real estate. The second part of the chapter discusses the grounds on which there may be a failure of entitlement under the will. A gift may fail for various reasons, including divorce/dissolution or nullity, lapse, ademption, forfeiture, failure to satisfy a condition, or uncertainty.

Chapter

This chapter discusses the construction of wills. The law of construction is a mixture of general principles and specific rules, developed mainly by the courts, but with some help from Parliament. To some extent, the general principles of construction can be regarded as broad guidelines to the court rather than as strictly binding. Consequently, some judges will feel that they have room for the exercise of a degree of discretion in achieving the result they think is merited on the facts of the case. Moreover, there is no universal agreement as to what constitutes a principle or a rule in this context. The remainder of the chapter covers the specific rules of construction and extrinsic evidence.

Chapter

Jennifer Seymour, Clare Firth, Lucy Crompton, Helen Fox, Frances Seabridge, Susan Wigglesworth, and Elizabeth Smart

This chapter discusses the law underlying the entitlement to a person’s property on his or her death. It considers the law of ‘testate succession’ where the deceased has left a will; the law of ‘intestate succession’ if there is no will, or if any will left by the deceased is not wholly effective to dispose of their estate; the law governing devolution of property not passing under the terms of the deceased’s will or the operation of the intestacy rules; and the law enabling members of the family or dependants of the deceased to make claims for provision against the estate.

Chapter

Clare Firth, Jennifer Seymour, Lucy Crompton, Helen Fox, Frances Seabridge, Jennifer Seymour, and Elizabeth Smart

This chapter discusses the law underlying the entitlement to a person’s property on his or her death. It considers the law of ‘testate succession’ where the deceased has left a will; the law of ‘intestate succession’ if there is no will, or if any will left by the deceased is not wholly effective to dispose of their estate; the law governing devolution of property not passing under the terms of the deceased’s will or the operation of the intestacy rules; and the law enabling members of the family or dependants of the deceased to make claims for provision against the estate.

Book

Pearce & Stevens’ Trusts and Equitable Obligations provides a detailed and contextualized account of the law of equity and trusts. The text gives detailed analysis of all key decisions, statutes, and current academic debates related to the law of equity and trusts, giving a grounding in the subject. This new edition, which includes an additional chapter on the three certainties, brings this subject together coherently, clarifying the discussion of the consequences of uncertainty. The text has been updated with recent cases and developments in the area, including Marr v Collie [2017] on resulting and constructive trusts, Patel v Mirza [2016] on illegality, Prest v Petrodel [2013] on resulting trusts and equitable proprietary remedies, and the Law Commission’s consultation on the making of wills.

Chapter

Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in White v Jones [1995] 2 AC 207. The document also included supporting commentary from author Craig Purshouse.

Chapter

This chapter discusses the capacity and intention required to make a valid will. To have capacity means that a person is legally competent to make a will. To be competent, the testator must have attained the required minimum age and must possess the necessary level of mental competence. A will is also invalid unless the testator had the intention to make it—he must have the animus testandi when he executes the will. More specifically, the requirement is that the testator must have intended that his wishes—as expressed in the appropriate form—should take effect on his death. It follows that these wishes must be entirely the result of his volition: the testator must know and approve of the contents of his will. Hence animus testandi can be vitiated by factors such as fraud, mistake, undue influence, or failure to understand fully the dispositions in the will.

Chapter

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter looks at the wider issues involved in the joint ownership of land. It looks at four broad categories of joint ownership. Case one is the joint purchase, where ownership rights are concurrent and all or some of the beneficiaries are also the trustees. Case two is co-ownership claimed or discovered, or perhaps agreed, when the relationship between the joint owners has broken down. Case three is the deliberate settlement or ‘express trust’ — express because it must be set up expressly, deliberately, by a written declaration of trust. Case four is joint ownership set up by will or by the rules of intestacy, on a temporary basis for the sake of passing property along.

Book

Clare Firth, Elizabeth Smart, Lucy Crompton, Helen Fox, Frances Seabridge, Susan Wigglesworth, and Jennifer Seymour

Foundations for the LPC covers the areas of the Legal Practice Course as set out in the LPC Outcomes: Professional Conduct and Regulation, wills and administration of estates, and taxation. The volume also features content on human rights law. The volume uses worked examples and scenarios throughout to illustrate key points. To aid understanding and test comprehension of the core material, checkpoints and summaries feature in every chapter. The book covers topics such as professional conduct (including financial services and money laundering), revenue law (including income tax, capital gains tax, VAT, corporation tax, and inheritance tax), wills and administration of estates, and issues related to human rights.

Chapter

Jennifer Seymour, Clare Firth, Lucy Crompton, Helen Fox, Frances Seabridge, Susan Wigglesworth, and Elizabeth Smart

Settlements may be created by settlors in their lifetime, or by will, or they may arise under the intestacy rules. This chapter considers the tax implications of such settlements from the perspective of both the trustees and the beneficiaries. It considers each of the three main taxes separately: inheritance tax, capital gains tax, and income tax.

Chapter

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on the disposal of property on death discusses the following: the general characteristics of wills; the doctrine of incorporation by reference; the origins of the secret trust; the difference between fully and half-secret trusts; the three elements of a secret trust: intention, communication, and acquiescence; mutual wills; donatio mortis causa (death-bed gifts); and the rule in Strong v Bird. All four of these doctrines provide exceptions to the strict rules governing wills and provide another example of equity mitigating the harshness of the law.