study pack 1 + Hayton: certainty of beneficiaries

Re Baden (No.1) - HL, by a bare majority of 3:2,

Principle:
1) the objects of a trust must be defined with sufficient certainty to enable the trustees to execute the trust according to the settlor's intention.
The objects of a power of appointment must be defined with sufficient certainty to enable the donees of the power to exercise it according to the settlor's intention
2) Certainty:
- conceptual certainty - precision of language used by the settlor to define the classes of person whom he intends to benefit
- evidential certainty - extent to which the evidence available in a particular case enables specific persons to be identified as members of those classes
- ascertainability - extent to which "the whereabouts or continued existence" of persons identified as beneficiaries can be ascertained
- administrative workability - extent to which it is practicable for trustees to discharge the duties

This article argues that:
- same degree of conceptual certainty is required for all trusts and powers of appointment
-

Aspects of certainty: 4 notions:
1) conceptual: meaning of "ex-employee"
2) evidential: e.g. A alleged that he is an ex-employee, but the record is destroyed by fire.
3) ascertainability: not sure if Tom is dead or not
4) how extensively must we survey the class of potential beneficiaries?

Fixed trust:
Complete list rule:
conceptual uncertainty: e.g. friend, old friend, person who has a moral claim on X
what degree of conceptual uncertainty will the courts tolerate?
Re Gibbard - a concept was sufficiently certain if it could be said in principle of at least some persons that they were within the class
Re Gulbenkian: this is not the correct test fo power of appointment

Gift upon conditional precedent

Re Allen - "to the eldest of the sons of [A] who shall be a member of the Church of English and an adherent to the doctrine of that church"
Held: the appellant should be permitted to seek to establish as a matter of fact that R had been a member of the Church of England and an adherent to its doctrine.

Re Barlow's Will Trusts - Browne-Wilkinson said that the "Re Allen test" was that the gift is valid if it is possible to say of one or more persons that he qualify, even though it may be difficult to say of others whether or not they qualify.

Re Clarke - TOR directed that his residue should be divided among each of four named "legatees". The gift to the last legatee failed. Held: each of the first three charities was entitled to a quarter of the residue, the fourth quarter went as on intestacy.

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Hayton textbook
Re Baden no.2:
Stamp LJ: relatives = next of kin, the trust is valid
Megaw LJ: substantial number of objects it can be said with certainty that they fall within the trust. What is a substantial number may be a question of common sense and of some degree in relation to the particular trust
Sachs LJ:

Cure uncertainty:
No
But what if the settlor gave personal power to widow that she can decide in case of doubt?
It seems unreasonable for the court to claim it invalid
But if it is valid that it seems unreasonable for the court to claim that the trust with trustee with fiduciary power being invalid



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Penner: administrative unworkability
McPhail, Lord Wilberforce: all the residents of Greater London

ambiguity of "hopelessly wide": size of the class? If the problem is survey? class definition? vague?

Only reported case in which a trust has failed for administrative unworkability is R v District Auditor, es p West Yorkshire MCC: any inhabitants of West Yorkshire
Lloyd LJ: class is far too large. the class was an accidental conglomeration of persons who had no discernable link with the settlor. and it is a non-charitable purpose trust.

3 cases dealing not with discretionary trusts, but with "intermediate" powers: power to appoint to anyone in the world except for a specified class:
Clausten v IRC
Re Manisty's Settlement
Re Hay's ST

Blausten: Stamp LJ focus on duty to survey
Manisty: Templeman: validity of any particular appointment. Templeton was not perturbed, expectations of the settlor are often not difficulty to discern

Another candidate for meaning of administrative unworkability: the settlor's direction is so capricious that no trustee could discern a sensible way to carry it out

Bird v Luckie: a testaor is permitted to be capricious
Brown v Burdett: testator's instruction to trustees to block up the rooms of a house for 20 years was struck down

Re Hay's: the width of a power pe se could not invalidate it if it were given to a non-trustee. The difficulty arises when the power is given to a trustee, whose fiduciary position requires him to deal with the power responsibly.

Swadling suggests that the test of administrative workability requires there to be a "core class" of objects within the larger class.

recent developement 2013

Hunter v Moss - argument: similar to wills.
- Hayton's criticism: a will is different, the executor divest all of the legal and beneficial title. In a trust, the alleged settlor only creates an imperfect gift.
- Criticism 2: equity does not perfect an imperfect gift.
- Alternative approach: the court impose a constructive trust on M, M holds the trust for Hunter and himself, 50 of the shares are for Hunter and 900 shares for Moss himself, as tenants in common.
- This approach is approved by Pearson v Lehman Brothers Finance, White v Shortall

Grainage v Wilberforce
Nelson v Greening & Sykes - the trustee of the sub-trust never drops out of the picture. So 53(1)(c) should never apply in cases where a sub-trust is declared.

Standard of proof in the case of secret trust:
Re B (Children): there is only one civil standard of proof, and that is proof that the fact in issue more probably occurred than not.

Resulting trust -
s.199 Equality Act 2010 - the presumption of advancement is abolished
---------------------------------------------------------------------------
Glister, J. ‘Section 199 of the Equality Act 2010’ 2010 73 MLR 807.
Although the presumption of resulting trust assumes that the recipient was not meant to receive the property beneficially, the presumption of advancement does not just assume that beneficial title was indeed intended to
pass—in fact it goes further and presumes that an outright gift was intended. This
means that, for example, both presumptions are rebutted by evidence that the donor
actually intended to make a loan to the recipient.

Sub-rule model
Maitland described the presumption of advancement as a ‘sub-rule’ of the general
presumption of resulting trust, by which he meant that the advancement
presumption was just one way of rebutting the overarching presumption of
resulting trust.
- fall to the donor to rebut the presumption of advancement, to show that they formed no intention to make a
gift to the recipient

Absence model
For Ashburner there should be no presumption of resulting trust at all in cases where a presumption of advancement applies.

Dullow v Dullow, Hope JA called the presumption of resulting trust
completely anachronistic and said that reform was overdue
This abolitionist view commands much judicial and academic
support,48 but in practice judges have not felt able to overthrow the presumptions.
Instead those presumptions have been described as entrenched ‘landmarks’ in the
law of property.49 It is therefore argued that in Australia the presumptions are

here to stay,50 at least for the moment, and so are still worthy of comment.

Standard of proof
in Pettitt v Pettitt, Lord Upjohn
commented that either presumption could be rebutted by comparatively slight
evidence.Court of Appeal case of McGrath v
Wallis confirmed, Laskar v Laskar seems to confirm that a presumption of advancement

between parent and child may be rebutted with slight evidence.

The three English cases all involved shared homes, and it could be
that the slight evidence requirement is actually a reflection of the general English
judicial dislike for both presumptions in shared home cases

Stack v Dowden: ‘in a case about beneficial ownership of a matrimonial or
quasi-matrimonial home (whether registered in the name of one or two legal
owners) the resulting trust should not in my opinion operate as a legal
presumption’.

More recent cases:
Damberg v Damberg (australia case), Lohia v Lohia (UK), Pecore v Pecore (Canada) : civil standard needed to rebut presumptions

Exactly what must the transferor prove?

what kind of trust?
Sub-rule model -
Absence model - express trust

p.15
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Re Buckinghamshire Constabulary Fund - when only one member left, the property was held on trust for the Brown bona vacantia

Hanchett‐Stamford v A‐G- Lewison J:  dissolution occurs by death of the members makes no difference to the destination of rights on dissolution

------------------------------------------------------------------------
Briggs, A. ‘Co‐ownership and equitable non sequitur’ (2012) 128
LQR 183.------------------------------------------------------------------------
Mee, J. ‘Ambulation, Severance, and the Common Intention
Constructive Trust’ (2012) 128 LQR 500.<-----------------------------------------------------------------------
Sinclair Investments v Versailles Trade Finance -
Facts: D is director of VGP and TGL. VGP is a public company, it fabricated large business transactions. TGL is an investment company, it transfer client's investment to VGP. Share price of VGP rose enormously. D sold part of his shareholdings in VGP.
Held: the receipt of a bribe does not normally give rise to a constructive trust.
A beneficiary will only have a personal claim against the fiduciary in respect of property which neither belonged to the beneficiary nor was acquired by taking advantage of an opportunity that rightfully belonged to the beneficiary. Thus a beneficiary can only claim the original value of any bribes taken by the fiduciary and not any subsequent additional profit.

Category 1: where the benefit is or was an asset belonging beneficially to the principal
(most obviously where the fiduciary has gained the benefit by
misappropriating or misapplying the principal's property)
Category 2: where the benefit has been obtained by the fiduciary by taking an advantage of an
opportunity which was properly that of the principal.
Category 3: all other cases

Category 1 & 2: constructive trust. Category 3: does not

Lister & co v Stubbs: 

FHR European Ventures LLP v Mankarious (2013) - Lister & Sinclair are both correct. Held: a secret commission obtained by a purchasing agent was held on constructive trust for the
principal.
Etherton C: this case is borderline between category 2 and 3.

2013 recent development: Chp 4, 5, 6, 7

Chapter 4: Revocation

Civil partners

Under the Civil Partnership Act 2004 the provisions of s.18 Wills Act

1837 apply to civil partners.

But in:

• Court v Despallieres [2010]

it was held that a will which stated (in a general way) that it would not

be revoked by a subsequent civil partnership was revoked when the

testator entered into a civil partnership, because s.18B(3) of the Wills

Act requires that it must appear from the will that the testator was

expecting to form a civil partnership with a particular person and he

must intend that the will should not be revoked by the formation of the

civil partnership. A general declaration that the will should survive any

civil partnership did not suffice. The section was clear. The same point

would apply in the case of a marriage. The will has to show that the

testator was expecting to marry a particular person.

There have been a number of recent cases in which wills have been

missing and Sugden v Lord St Leonards has been applied. A special

recent example is:

• Re Ciebrant, Van Kwawagan v RNLI [2008]

The deceased’s last will was almost certainly destroyed by someone who

would have benefited if he had died intestate, but the application of the

rule in Sugden allowed the charities who would have benefited under the

will to obtain probate of it.

Chapter 5: Construction

• Sammut v Manzi [2008]

The Privy Council had to interpret a badly drafted will and came to a

different conclusion from the Court of Appeal in the Bahamas. This is not

a very helpful case. The Privy Council did not make it clear whether the

will was, or was not, professionally drafted and also said nothing about

the distinction between the literal and the intentional approaches to

construction. There is no Bahamian equivalent to s.21 of the AJA (or, if

there is, the PC did not mention it) and the opinion of the PC reads as

though it were applying the pre-1983 English law on construction.

Students might like to consider how this case would have been dealt with

if it had come before an English court today and so would have been

covered by s.21.

Chapter 6: Family provision

Domicile

• Cyganik v Agulian [2006] 

The partner of a man who died domiciled in Cyprus could not claim

under the 1975 Act, although the deceased had assets of around £6.5

million in England and had made an English will which was admitted to

probate.

See also the recommendation of the Law Commission as to a partial

reform of the domicile requirement (see below).

Spouses

• P v G, P and P [2004] 

A ‘big money’ case (the estate was worth over £5 million and there were

significant assets outside the estate, including a pension fund worth

about £4.5 million and sums of £1.2 million nominated to the deceased’s

children by his first marriage). Black J awarded the widow a capital sum

of £2 million (to include the matrimonial home) and ordered the pension

trustees to purchase an annuity for her. Of the divorce analogy in s.3(2),

Black J said it was the minimum that a widow should attain. Indeed, she

said that the analogy was almost impossible to apply on death,

particularly because the tax position on death is completely different to

the tax position on a divorce.

• Cunliffe v Fielden [2005] 

The Court of Appeal held that the effect of White v White was not to give

rise to a presumed entitlement to equal division of assets between

spouses in the context of the 1975 Act. The judge had awarded the

widow a lump sum of £800,000 out of a net estate of £1.4 million. She

had begun working as housekeeper some 18 months before the deceased

died. She became financially dependent on the deceased, initially as

housekeeper and then as his wife. The will was executed a year before he

died and a few days before he married the claimant. She had benefited by

survivorship from a number of funds and policies in their joint names.

Under the will, she was a member of a class of objects of a discretionary

trust of the residuary estate.

The Court of Appeal overturned the trial judge’s decision. He had not

explained how he had exercised his discretion. In the context of

reasonable financial provision under s.1(2)(a) and s.3(2)(b), the Court

of Appeal stated that there was a clear difference between a widow who

had been married for many years and who had made an equal

contribution to the family of the deceased and a person (such as the

claimant here) who had been married for only just over a year and who

had made little contribution to the family wealth. White v White could be

departed from if there was good reason. The Court of Appeal substituted

a lump sum of £600,000.

• Re Waite (also known as Barron v Woodhead) [2008] EWHC 810

(Ch); [2009] 1 FLR 747; [2008] WTLR 1675.

The applicant widower (B) applied for reasonable provision out of the

estate of his late wife. The claim was made against the respondent

residuary beneficiaries of the estate (W), the deceased’s two children

who were also the personal representatives of her will. B, who was 73 at

the time of the hearing, met the deceased in 1986 and they cohabited

until their marriage in 1993. Both spouses were heavy drinkers and

there were incidents of domestic violence carried out by both parties.

The couple lived in B’s property where he had run a haulage business

until he was declared bankrupt in 1999. They separated in 2001 but

divorce proceedings were never commenced. The net estate was valued

at about £315,000. W submitted that no award should be made to B on

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account of his conduct, namely the domestic violence and his evasiveness

with both the court and the trustee over financial matters.

The court (following Cunliffe v Fielden, above) held in favour of the

applicant. The Act contemplated an objective, two-stage approach. First,

the court had to consider the factors set out in s.3 in order to determine

whether it was reasonable to make no provision for B. If it considered

that reasonable provision had not been made, it had then to consider the

same factors in order to evaluate any provision to be made under the

Act. Despite the uncertainties in respect of B’s financial position, the

court was not satisfied that he had funds that would enable him to

rehouse himself. In all the circumstances the will did not objectively

make reasonable financial provision for B. Therefore the suggestion that

there should be no award or a very small award was wholly unrealistic.

However, the principal concern of the court was to ensure that B had a

roof over his head and had sufficient means for his everyday needs. In all

the circumstances of the case, it was not appropriate for there to be a

substantial additional capital award. Considering B’s needs, it was

therefore proposed to direct that he had a life interest in £100,000 to be

used to purchase suitable accommodation. In addition, B should be

entitled to a lump sum of £25,000 to defray any costs of moving, to set

himself up in the property and meet future expenses.

• Iqbal v Ahmed [2011] EWCA Civ 900; [2011] 3 FCR 1; [2011] WTLR

1351.

It was appropriate to give a widow who had been financially dependent

on her husband a right to occupy her matrimonial home for life, half of

any sale proceeds, and the whole of the husband’s residuary estate by

way of reasonable financial provision, rather than a life interest in the

home. The deceased had been married to W for 22 years when he died. S

was his son from an earlier marriage. W was 61 years old at the time of

the hearing, spoke little English and had been financially dependent on

the deceased, though she had accumulated £3,000 in savings. The will

gave W £8,000 and a right to occupy the matrimonial home rent free.

That right was subject to an obligation to keep the property in repair.

Subject to her right of occupation, the property was given to S absolutely,

as was the residuary estate. The property was worth approximately

£115,000. It was poorly maintained and required repairs costing over

£30,000. The residuary estate was worth £28,000. The deceased had

given S a gift during his lifetime of £21,500 and S was comfortably off.

The judge ordered that W should receive the right to occupy the

property for life, half the proceeds of sale of the property, the whole of

the residuary estate and S’s agreement to pay half the insurance and the

structural repairs of the property.

• Lilleyman v Lilleyman [2012] EWHC 821 (Ch); [2012] 3 WLR 754;

[2012] 2 FCR 171; [2012] WTLR 1007.

The claimant had been married to the deceased for a little over two years

at the time of his death. The deceased left a large estate (over £6 million).

Under the deceased’s will, the claimant received limited rights to occupy

both the matrimonial home and an apartment, a fixed annuity worth

£378 per month and personal chattels worth £18,000. The claimant

argued that this provision was not reasonable. Most of the residuary

estate was left to the deceased’s sons by a previous marriage. The court

held that the provision made for the claimant was not reasonable.

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‘Reasonable’ provision for a spouse was not limited to providing

financial security for the rest of her life. A wider range of considerations

were relevant, including (but not limited to) the hypothetical divorce

provision in s.3(2). ‘Financial obligations and responsibilities’ in s.3(6) of

the 1975 Act included the testator’s moral financial obligations, in

addition to any legally binding obligations. The court also considered

that the relationship between the claimant and the deceased’s sons had

broken down, which would make it difficult for them all to have interests

in the same properties. The court held that in addition to the property

given by will, the claimant should receive the estate’s entire interest in

the matrimonial home and apartment, as well as the estate’s future

interest in another property (in all cases, the claimant could receive a

lump sum representing present market value if she wished).

Civil partners

The Civil Partnership Act 2004 adds the civil partner or former civil

partner of the deceased to the categories of applicant who can apply

under s.1 of the Act.

The appropriate standard for civil partners is ‘such financial provision as

it would be reasonable in all the circumstances of the case for a civil

partner to receive, whether or not that provision is required for his or

her maintenance’.

But note that in:

• Southern Housing Group Ltd v Nutting [2004] EWHC 2982; [2004]

All ER (D) 347; [2005] 1 FLR 1066,

Evans-Lombe J upheld the decision of a recorder to the effect that two

homosexuals were not living together as husband and wife and that the

survivor was not, therefore, entitled to succeed to an assured tenancy as

the ‘spouse’ of the deceased. Whether the relationship is heterosexual or

homosexual, the crucial requirement of living together as husband and

wife is a ‘commitment to permanence – the relationship must be an

emotional one of mutual lifetime commitment, openly and

unequivocally displayed to the outside world’. There was no such

commitment in this case.

And in:

• Baynes v Hedger [2008] EWHC 1587 (Ch); [2008] 2 FLR 1805;

[2008] WTLR 1719,

the parties were not ‘living together as civil partners’ because: (i) their

relationship was not openly and unequivocally displayed to the outside

world; and (ii) they had two separate establishments.

Cohabitants

• Re Dix [2004] EWCA Civ 139; [2004] 1 WLR 1399; [2004] WTLR

331.

A three-month separation between the respondent and the deceased did

not render the respondent unable to satisfy the provisions of the 1975

Act since it was clear that this was not the settled situation and the

couple were still part of the same household.

• Lindop v Agus [2009] EWHC 1795 (Ch); [2010] 1 FLR 631; [2009]

WTLR 1175.

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A claimant established that she had been living as the wife of a deceased

within the meaning of s.1(1A) of the 1975 Act even though she retained a

different address for official correspondence. L had met D, a dentist, at

the practice where she worked part time. Both had children from

previous relationships and L was living with her father after her divorce.

She later moved into D’s house and lived there for several years before

his death. However, she continued to use her father’s address for official

correspondence and she remained registered on the electoral roll at his

house. After D’s death, L brought a claim for financial provision as a

person who was living in the same household as D as his wife and/or as a

person who was being maintained by D. The court was required to

determine as a preliminary issue whether L was eligible to bring a claim.

D’s executors submitted (inter alia) that L could not establish that she

was living as D’s wife as she still used her father’s address for

correspondence, and her relationship with D was therefore not openly

and unequivocally displayed to the outside world. Despite a lack of

documentary evidence, there was sufficient corroboration from witness

evidence to find that L and D had lived in the same household for a

period of at least two years before D’s death. There was a stable sexual

relationship between them, and D provided a roof over L’s head and paid

for the outgoings of the house. He also paid for holidays and clothes for L,

and they looked after the children together. It was plain that they were

living together. The remaining question was whether L was living as D’s

wife. The court was required to give effect to the statute, which simply

required that L and D be living as man and wife. The fact that L’s bank

and other public bodies sent letters to her father’s address shed little

light upon whether she was living with D as his wife. Whilst some of the

evidence was inconsistent with L’s case, it had to be weighed against the

other evidence, which pointed towards L and D living openly together

and displaying that to the outside world. Marriages are multifarious. L

had been subject to a bitter divorce, and in those circumstances there

was nothing inconsistent with her living with D as ‘man and wife’

whilst retaining a different address as security or in case the

relationship broke down.

• Re Evans [2011] EWHC 945 (Ch); [2011] 2 FLR 843; [2011] WTLR

947.

Since the disposition of the estate of an individual who had died intestate

did not make reasonable financial provision for his partner (C), she was

entitled to a sum from his estate under the 1975 Act to allow her to

purchase a house. That property would be held on trust for the

deceased’s sons subject to an interest in C’s favour entitling her to live

there for as long as she wished. The starting point was that no financial

provision had been made for C at all. She was 60 and had lived with the

deceased for five years, and they had contributed equally to looking after

their home together. C’s only source of income was rental from her

English property and a small pension, although she would in due course

receive a state pension. The sons were self-supporting adults.

Children

• Gold v Curtis (2004) 154 (7157) NLJ 1888; [2005] WTLR 673.

The court emphasised that the basis of the court’s jurisdiction is the

relief of financial need and not the achievement of equality or fairness

between competing children. The entire estate of £870,000 had been left

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to a well-off daughter and nothing given to an adult son whose financial

position was perilous and whose pension provision was inadequate.

The son was awarded £220,000 to augment his income and £30,000 as

a capital sum.

• Myers v Myers [2004] EWHC 1944; [2005] WTLR 851.

The testator was held not to have made reasonable financial provision

for his adult daughter’s maintenance where she was living in severely

straitened circumstances and her situation was a result of her awkward

personality and mental fragility rather than indolence. She had not

behaved as badly to her father as he seemed to believe and he had very

substantial wealth: the deceased had left his entire estate (of over £8

million) to his second family.

But note also:

• Ilott v Mitson [2011] EWCA Civ 346; [2011] WTLR 779,

in which the Court of Appeal overruled the decision of Eleanor King J

(noted in the previous Update as H v Mitson [2009] EWHC 3114 (Fam);

[2010] WTLR 193 (Fam Div)) and restored the decision of the District

Judge.

A mother disinherited her estranged daughter and left her entire

£486,000 estate to animal charities. Eleanor King J said that the question

was whether the provision made for the daughter by the mother was

(objectively) unreasonable. She held (overturning the District Judge’s

award) that it was not objectively unreasonable and so the daughter was

entitled to nothing. This tended to revert to the approach taken in the

earlier case of Coventry (1980) rather than the kinder (and possibly less

logical) line in the later case of Espinosa (1999).

The Court of Appeal allowed the daughter’s appeal, holding that the

value judgment made by the trial judge in determining whether the

financial provision resulting from a will was reasonable should not be

interfered with by an appellate court unless ‘plainly wrong’, and

reasserting that, in order to succeed under the Act, there was no need for

an adult child of the deceased to show that the deceased owed him a

moral obligation. It was plain that the District Judge had not erred in law.

He had asked himself the right question, namely whether having

considered all the s.3 factors the resulting lack of provision was

unreasonable. He had then proceeded to consider those factors

meticulously. The District Judge was not under an obligation to ‘balance’

the s.3 factors, or to explain why the particular combination of factors

led him to the conclusion that no provision was unreasonable. That was a

value judgment that the District Judge was entitled to make and that

exercise should not be interfered with by an appellate court unless

‘plainly wrong’. The District Judge had to exercise a discretion in

deciding what, if any, relief to award, and did so in the instant case,

explaining fully and precisely the relief he was awarding and why.

Therefore, the criticism that he had not conducted the necessary

‘balancing exercise’ was misplaced. There was plainly an overlap

between the value judgment that the provision was unreasonable and

the exercise of the discretion in making the award. However, what

mattered was that the decision taken as a whole explained why the judge

had reached the conclusion he had. An adult child of the deceased did not

have to show that the deceased owed him a moral obligation or that

there were other special circumstances in order to succeed under the

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Act. Further, in deciding whether the disposition of the deceased’s estate

made reasonable provision for the applicant, the trial judge was not

exercising a discretion, but making a value judgment based on his

assessment of the factors in s.3(1).

Dependants

• Baynes v Hedger [2009] EWCA (Civ) 374; [2009] 2 FLR 767.

The claimant failed both in the High Court and in the Court of Appeal, but

in the Court of Appeal it was on the ground that she did not even have

the standing to bring a claim, because the deceased had not assumed

responsibility for her. This is the approach taken by Megarry V-C in Re

Beaumont and appears harsher than that taken by the Court of Appeal in

Jelley v Iliffe.

Law Commission Report 2011

As mentioned under Chapter 2 above, on 14 December 2011 the Law

Commission published a Report on Intestacy and Family Provision Claims

on Death (Law Com No 331), which followed the Consultation Paper (CP

No 191) noted in an earlier Update and which reviewed the current law

and discusses options for reform.

The 271-page Report can be accessed via the Law Commission’s

website at:

www.justice.gov.uk/lawcommission/docs/lc331_intestacy_report.pdf

Along with a 5-page Executive Summary:

www.justice.gov.uk/lawcommission/docs/lc331_intestacy_summary.pdf

The main recommendations of the Report in relation to the law of family

provision under the 1975 Act are broadly as follows:

• In relation to provision for a surviving spouse, it is proposed that it

be made clear that the requirement to ‘have regard to’ what he/she

might reasonably have expected to receive on divorce (or

dissolution of a civil partnership) should not act as any kind of limit

(upper or lower) upon entitlement to family provision (paras 1.88,

2.146, 9.7).

• In relation to a ‘child of the family’, it is recommended that this class

should not be limited to cases where the deceased was married or in

a civil partnership (paras 1.96, 6.41, 9.14).

• Also, a ‘dependant’ should not be required to prove that the

deceased had ‘assumed responsibility’ for him/her, as distinct from

the fact of maintenance, or that the deceased contributed more to

the relationship, in terms of financial value (paras 1.96, 6.59, 6.76,

9.15-9.16) – a reform that would ‘open the door for claims in cases of

interdependence’.

• There are significant recommendations in relation to cohabitants (to

mirror similar recommendations made in relation to the law of

intestacy), essentially by removing the requirement for cohabitation

for a two-year period where the cohabitants have children. The

proposal is that an application may be made by a person who (1)

was the father or mother of a child of the deceased and (2) at the

date of death was (a) living in the same household as the deceased

and (b) as the deceased’s spouse (para. 8.153).

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• It is recommended that the classes of potential applicants should not

be widened (para. 6.94).

• There should be no change to the ‘maintenance’ standard of family

provision as it applies to children (paras 1.95, 6.26).

• The domicile requirement should be reformed, so that an application

may also be made where English domestic succession law applies to

any part of the estate (paras 1.98, 7.17, 7.37, 9.18).

• There are other, largely technical, proposals for reform, as set out in

the Report.

Candidates are strongly encouraged to familiarise themselves with the

recommendations of the Report and also its full and helpful discussion of

the issues examined.

Chapter 7: Entitlement

7.4 Lapse

• Rainbird v Smith (2012) 

A will left the residuary estate to ‘upon trust for such of them, my

daughters, R, J and S, as shall survive me, and if more than one, in equal

shares absolutely’. One of the daughters predeceased the testatrix. The

question was whether s.33 of the Wills Act 1837 applied so that the

daughter’s surviving children could inherit under the will. According to

s.33, this will happen ‘unless a contrary intention shall appear by the

will’. The High Court held that the clear intention of the testatrix was that

the residuary estate should pass only to those of her daughters who

survived her. This was a clear intention that the rule in s.33 of the 1837

Act should not apply. The residuary estate passed only to the two

surviving daughters, not the testatrix’s grandchildren.

7.6 Forfeiture

The Estates of Deceased Persons (Forfeiture Rule and Law of Succession

Act) 2011 came into force on 1 February 2012. The Act inserts new

sections into two existing statutes in relation to forfeiture.

• For testate succession, the Wills Act 1837 now includes s.33A. By

this section, if the killer would have been entitled to receive property

under the victim’s will, but is precluded from doing so due to the

forfeiture rule, the killer will be treated as having predeceased the

victim. The rules of lapse and s.33 of the 1837 Act will then apply.

• For intestate succession, the Administration of Estates Act 1925 now

includes s.46A. By this section, if the killer would have been entitled

to receive property under the victim’s intestacy, but is precluded

from doing so due to the forfeiture rule, the killer will be treated as

having predeceased the victim.

Chapter 8: Alternative succession

8.1 Privileged wills

• Re Servoz-Gavin, Ayling v Summers [2009] 

This is a rare example of a reported case concerning a seaman’s

privileged will. The deceased was a ship’s radio officer and made the will

while ashore (在岸上), but when under orders to join his ship. Will upheld.

8.2 Statutory wills

• Re P [2009]

This was an application to the Court of Protection for the making of a

statutory will. It is the first reported case of such an application under

the Mental Capacity Act 2005. It was held that guidance under the Mental

Health Acts 1959 and 1983 was no longer directly applicable. Under the

1983 Act, the court had to imagine that the patient had had a brief lucid

interval and had then to imagine what will he would have made during

that interval (the ‘substituted judgment’ approach). Under the 2005 Act,

the court had to work out not what the patient might be expected to have

done, but what was in his best interests (the ‘balance sheet’ approach). It

would be relevant to his best interests how he would be remembered

after his death.

• Re M [2009] 

The applicant property and affairs deputy (W) applied for an order

authorising him to execute a statutory will for the elderly second

respondent (M). M was a childless widow who lacked testamentary

capacity. She had, at different times, made wills in which she had left

most of her property to charities or her neighbour. She was later cared

for and lived with the first respondent (Z) and his family and during that

period she transferred significant sums to Z and, in 2004, made a will

under which he was the sole beneficiary and granted an enduring power

of attorney in his favour. W was later appointed to act for M and by court

order M was removed from Z’s address. Contrary to a court order, Z

failed to provide information concerning his receipt of M’s money and

was accordingly criticised by the court. The court later directed that an

interim will should be made for M and reviewed once the beneficiaries

under her previous wills had been notified. That interim will reinstated

the terms of a will made before M had lived with Z and made provision

for the charities and M’s neighbour. W and M submitted that a statutory

will under the Mental Capacity Act 2005, s.18(1)(i) should be made for M

in substantially the same terms as the interim will. Z argued that a

statutory will should be made in the same terms as the 2004 will. W’s

application was granted. Munby J followed Re P, above, and held that

decisions on earlier Acts should be consigned to history. The starting

point was the structured decision-making process prescribed by the

2005 Act, a process which required the decision-maker to take a number

of steps before reaching a decision, including encouraging the legator to

participate in the decision, considering his or her past and present

wishes, beliefs and values, and taking into account the views of third

parties as to what would be in the legator’s best interests. There was no

place in that process for reference to judicial decisions under the earlier

and very different statutory schemes.

The Act laid down no hierarchy as between the factors which had to be

borne in mind, beyond the overarching principle that what was

determinative was the judicial evaluation of what was in the individual’s

best interests. The weight to be attached to the factors would differ

depending upon the individual circumstances of the particular case but

there might be one or more features which were of magnetic importance

in influencing or determining the outcome. The individual’s wishes and

feelings were a significant factor to which the court had to pay close

regard. The weight to be attached to those wishes and feelings was

always case-specific and fact-specific and in considering their weight and

importance, as required by s.4(2), the court had to have regard to all the

relevant circumstances. That included the degree of the individual’s

incapacity, the strength and consistency of the views they expressed, the

possible impact on the individual of knowledge that their wishes and

feelings were not being given effect to, the extent to which their wishes

and feelings were, or were not, rational, sensible, responsible and

pragmatically capable of sensible implementation in the particular

circumstances and, crucially, the extent to which those wishes and

feelings, if given effect to, could properly be accommodated within the

court's overall assessment of what was in their best interests.

?

• Re D [2010] 

This is a case where the Court of Protection ordered the execution of a

statutory will in 2010 to undo the effect of two earlier wills made in 2004

and 2006 when the testatrix probably lacked capacity. The statutory will

was on the same terms as a will which the testatrix had made in 1995

when she did clearly have capacity. In other words, the statutory will was

used to undo the effect of two ‘suspicious wills’. Compare this case with Re

Davey (1981) where a statutory will was executed to undo the effect of a

marriage which should not have taken place.

8.3 Mutual wills

• Carvel Foundation v Carvel [2007] =

This case held that mirror-image wills made by a husband and wife,

which they had agreed not to alter or revoke, had been mutual. The

husband and wife had agreed, at the time they made their wills, that

neither would make any gratuitous transfers during their joint lives,

unless the other agreed, and that the survivor would make no gratuitous

transfers. This was an unusually clear case of mutual wills.

• Charles v Fraser [2010] EWHC 2154 (Ch); [2010] WTLR 1489.

This is said to be only the third contested mutual wills case in England in

the last 80 years. Most mutual wills cases involve married couples, but

this case concerned two widowed (childless) sisters whose wills were in

favour of family members. The trial judge (quite correctly) criticised the

draftsman of the mutual wills for not making a clear note of the fact that

they were mutual, and for not including a recital of it in the wills.

• Fry v Densham-Smith [2010] EWCA Civ 1410; [2011] WTLR 387.

A decision that an oral agreement for mutual wills had been made and

acted upon would not be set aside where the trial judge had produced a

sound judgment which had not strayed beyond the boundaries of solid

evidence into the realms of surmise and speculation, which had made

reasonable and proper inferences from the facts, events and

circumstances and which did not contain any misdirection of law. The

judge found that D and H had executed mutual wills pursuant to an oral

agreement so that on H’s death an irrevocable trust took place and that

on D’s death some 15 years later the trust was binding on her estate.

Under that trust M and F were entitled to an equal half share of D’s net

estate. However, under the last of three non-mutual wills made by D

after H’s death, F was the sole executor and beneficiary. F appealed

against the findings of the judge on the basis that they were not

supported by the evidence and that M was not entitled to any share in

D’s estate.

The Court of Appeal dismissed the appeal, holding that, despite the

deficiency of direct evidence and the piecemeal nature of the evidence

relied on by the judge for his conclusion, this did not defeat M’s claim or

undermine the judgment. The judge had made reasonable and proper

inferences from the facts, events and circumstances about what had

probably been arranged and agreed between H and D, and had

satisfactorily explained his reasoning. The result was a sound judgment

which had not strayed beyond the boundaries of solid evidence into the

realms of surmise and speculation. The instant court should not interfere

with it. It did not contain any misdirection of law nor could it be said that

the key findings were contradicted or unsupported by evidence or based

on inferences so improbable that no reasonable judge could have made

them. (It must be questioned, nonetheless, whether this enables a mutual

will to be proved rather more easily than has been the case in the past.

Strong, almost irrefutable proof, seems to have been looked for in earlier

decisions, but clearly not in this case.)