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Chapter

Cover Borkowski's Law of Succession

7. Construction of Wills  

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

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8. Entitlement  

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.

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9. Family Provision  

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

Cover Complete Equity and Trusts

6. The disposal of property on death  

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.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

17. Wills and intestate succession  

This chapter is concerned with the arrangements which people can make to choose who will benefit from their property after their death. It is also concerned with what happens when the deceased makes no choice at all and dies intestate. 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

Cover Essential Cases: Tort Law

White v Jones [1995] 2 AC 207  

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

Cover Essential Cases: Tort Law

White v Jones [1995] 2 AC 207  

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

Cover Complete Equity and Trusts

2. The different types of trust  

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 examines the different types of trust, how they are used, and the nature of a trust. The many uses of trusts in the modern world, from pensions to the ownership of the family home and the preservation of family wealth are explained. The discussions cover the meanings of trust and property; what trusts are used for; what an equitable interest is; classification of trusts; resulting trusts; constructive trusts; implied trusts; Quistclose-type trusts; and wills and intestacies.

Chapter

Cover Borkowski's Textbook on Roman Law

8. Inheritance  

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.

Book

Cover Pearce & Stevens' Trusts and Equitable Obligations
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, providing a grounding in the subject. This new edition, which includes substantial additions on trusts of the family home, charities, and wills and intestate succession, brings the law coherently together. The text has been updated with recent cases and developments in the area, including Stoffel and Co v Grondona [2020] UKSC 42 on illegality, Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 on advisor liability, Webb v Webb [2020] UKPC 22 on beneficial ownership, and Matthew v Sedman [2021] 1 UKSC 19 on the running of time limits in limitation actions.

Chapter

Cover Borkowski's Law of Succession

3. Wills: Nature, Characteristics, and Contents  

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.

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4. Making a Will: Capacity and Intention  

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

Cover Borkowski's Law of Succession

5. Making a Will: Formalities  

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

Cover Borkowski's Law of Succession

6. Revocation  

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.