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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 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.

Book

Borkowski’s Law of Succession gives full attention to this area’s rich and evolving case law, illustrating the relevance of the law to modern life; the central issues and academic debates surrounding inheritance are discussed fully. This revised edition covers new case law including Ilott v The Blue Cross and subsequent decisions, Payne v Payne, Legg v Burton, and Hand v George, and new legislation including the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019. The text also looks at relevant Law Commission projects (in particular the recent consultation paper on Making A Will). Finally, there is discussion of the latest succession law scholarship.

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

Jonathan Hill

This chapter considers the choice of law rules for the transfer of property. The rules are structured round a number of distinctions. First, a distinction has to be drawn between movables and immovables. Immovable property, which comprises land and things attached to or growing on the land, is subject to the control of the authorities where it is situated to a much greater extent than movable property, which can be physically removed from one country to another. As regards movables, a further distinction is drawn between tangibles and intangibles. Secondly, the law distinguishes between cases involving the transfer of property on death and cases where property is transferred inter vivos. Thirdly, transfers which arise as a result of marriage should be distinguished from other types of transfer.

Chapter

This introductory chapter provides an overview of the book’s main themes. This book concerns three broad questions on the posthumous distribution of property in England and Wales: What should happen if a person has not fully expressed valid wishes as to the fate of his or her property (largely the law of intestacy)? What form should such wishes be required to take (largely but not exclusively the law of wills)? And, when may those wishes (or ‘testamentary freedom’) be overridden to benefit those who might have a legitimate claim to a (larger) share of the estate (the law of family provision)? The remainder of the chapter discusses the purposes of succession law and succession in its social context.

Chapter

This chapter discusses the basic essentials of the law of administration. It addresses two central questions: Who administers the deceased’s estate? What does administration entail? It is the deceased’s personal representatives who administer the estate, either executors or administrators. Executors are the representatives appointed by the testator under his will (usually) to administer his estate. Administrators, on the other hand, are appointed by the court. This occurs where the deceased died intestate or, less frequently, where there was a will but no proving executor. The administration of the estate entails principally obtaining a grant of representation—a grant of probate in the case of a will, a grant of letters of administration in an intestacy—collecting and managing the assets of the estate, paying the debts and liabilities, and distributing the net estate according to the testator’s will or the rules of intestacy.

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

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

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 examines three concepts of State: first, that of the territory of the State, which is an area; second, that of the border of the State, which is a line having adjacent to it a vaguer ‘frontier’ zone; and third, that of the State itself, which is a legal concept that denotes the political society that is based in the territory. It begins with a discussion of how we know that a piece of territory belongs to one State rather than to another. It then considers the requirements that states must meet as a person of international law: a permanent population; a defined territory; government; and the capacity to enter into relations with the other states. Next, the chapter deals with the requirement of ‘legitimacy’ that must be satisfied by candidates for Statehood, focusing on the issues of recognition in domestic law and state succession.

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 deals with the law of intestacy. The first section consists of an introduction to intestacy, dealing with the basic terms and rules, the incidence of intestacy, and the evolution and theoretical basis of the law. The second section gives a more detailed account of the current law. Considerable reference is made to relevant work of the Law Commission, particularly Intestacy and Family Provision Claims on Death (Law Com. No. 331, 2011), which was preceded by Consultation Paper 191 (2009) and sought to modernize the law of intestacy in light of contemporary social conditions. The Commission’s suggestions were largely enacted in the Inheritance and Trustees’ Powers Act 2014.