Mental Health Act
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Mutual Wills
Burgess, R. [1970] ‘A fresh look at mutual wills’ Conv 231.
Youdan, T. [1979] ‘The mutual wills doctrine’ 29 U Toronto LJ 390.
Rickett, C. (1991) ‘Extending Equity’s reach through the mutual wills doctrine’ 34
MLR 581.
- The equitable doctrine, and hence the equitable remedy available, operates
only from the point of the death of one party to the agreement where that party
has now irrevocably performed his or her obligation.
- hence the remedial constructive trust remedy
- Bigg v Queenslund Trustees Ltd (Australia case): Mr and Mrs Bigg executed mutual wills within a week of their marriage.
- The evidence established that after the execution
of the mutual wills Mrs Bigg had executed three further wills. The will operative
at her death in 1988 was in its terms quite far removed from the terms of the original
mutual will. Rather than leaving her property to Mr Bigg for his own use, she actually
gave him only a life interest. The later wills were unknown to Mr Bigg.
- There was evidence that Mrs Bigg was, ‘anxious not to let [Mr Bigg]
find out what she was engaged in doing.’
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DMC
Borkowski, A. Deathbed Gifts. (London: Blackstone Press, 1999) [ISBN 1854319388].
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Forfeiture Act
Youdan, T. (1973) ‘Acquisition of property by killing’ 89 LWR 235.
Cretney, S. (1990) ‘The Forfeiture Act 1982’ Oxford J Legal Studies 298.
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s.20:
s.20(1) Administration of Justice Act 1982 allows the court to rectify a will
if it is so expressed that it fails to carry out the testator’s intentions in consequence
of (a) a clerical error, or (b) a failure to understand his instructions.
Austin v Woodward -
A claim for rectification of a will was granted under s.20 where there
was clear evidence that the misuse of new precedents (template) had led to the
testatrix’s intention that a beneficiary take a property absolutely not
being reflected in that will. It was clear in the light of the evidence that
the will as currently drawn did not reflect her intentions. It was plain
that the impugned provision of the will had been based on a new
precedent which had been used without any thought given to the
impact that that might have on the relevant disposition. There was no
doubt that an error of that type was a clerical error that was conducive
to an order for rectification under s.20(1)(a).
Failure to understand instructions
- Martin v Triggs, Turner Barton
The defendant solicitors were found negligent in failing to draft the will of a testator in accordance with his instructions relating to an express power of advancement of capital to his widow. They had also given negligent advice to her after the testator’s death as to the allocation to income and capital of the proceeds of national savings certificates held by the estate and the claimant’s entitlement to a widow's pension. This is the first case in which solicitors have been held liable under White v Jones for loss suffered by the claimant as the object of a power and the first case in which professional executors have been held to owe a duty of care in negligence to a beneficiary of the estate in relation to issues arising in the course of administration.
This is also a rectification case, where it was held that the draftsman
had failed to understand his instructions. The draftsman was a solicitorwho denied that he had so failed, but the court did not accept his
version of events. This case demonstrates that it is essential for
professional will draftsmen to keep full attendance notes of their
instructions.
- Gerling v Gerling
A will which created a partial intestacy by failing to appoint
remaindermen on the termination of a trust created in relation to half
share in the residuary estate was capable of being rectified under s.20
where to do so would not substantially prejudice the beneficiary
affected and where there was nothing to indicate any intention by the
testatrix to leave part of her estate undisposed of by her will. This case
also addressed the issue of applications for rectification made out of
time (as to which, see below).
the court observed that there was an unfettered discretion to grant
permission to make a claim for rectification outside that time limit. The
burden of establishing a case for making such a claim out of time was a
substantive one and lay with the person applying for relief; it was not
merely a procedural time limit. Relevant considerations included the
strength of the claim, the length of the delay, the reasons for the delay,
the prejudice to which it might have given rise, the promptitude with
which the claim was first notified, the existence of negotiations and
whether the estate had been distributed. Ultimately, it was for the
court to decide whether it was just and proper, in all the
circumstances, to extend time for making the claim.
Marley v Rawlings
The Supreme Court held that where a testator does not know and
approve of the entire contents of a will, it can still be rectified under
s.20. Obiter, the Supreme Court also said that the will could be
rectified if the will failed to satisfy the formality requirements of s.9 of
the Wills Act. In the case of a failure of formalities it is not clear how
such a rectified will would become valid, as the formality requirements
remain in effect. There is considerable discussion of clerical error in the
case. The Supreme Court favoured a ‘wide’ approach to understanding
the term. See paras [50]–[53] and [60]–[85]. There are also important
remarks on the exercise of the court’s inherent power to delete words,
see paras [43]–[49].
Section 20(2) of the Administration of Justice Act 1982 requires that
an application for an order for rectification ‘shall not, except with the
permission of the court, be made after the end of the period of six
months from the date on which representation with respect to the
estate of the deceased is first taken out’. This requirement has been
considered in a few recent cases.
Wordingham v Royal Exchange (1992)
Re Williams [1985] 1 All ER 694 that ‘clerical
error’ includes errors made by the testator. Any claim for rectification must be
framed within s.20(1)(a) or (b). Thus speculation as to a testator’s true intentions is an
insufficient basis for rectification: Re Bell [2002] WTLR 1105. Proof that the will fails to
carry out the testator’s intentions must amount to ‘convincing evidence’ in order to
justify rectification: Re Grattan [2001] . For a recent example of clerical error,
see Re Munday [2003] .
Re Martin, Clarke v Brothwood - A solicitor included in a will the words ‘twentieth shares’ when the
testatrix really intended ‘twenty per cent shares’. It was not clear how
LLB Recent developments 2014
15
the error had come to be made, but, on the assumption that the
testatrix had used these words and the solicitor had inserted them
without realising that they did not make sense, the trial judge thought
that this was a ‘clerical error’.
• Re Segelman (1996)
• Perrin v Morgan (1943)
• Re Rowland (1963)
• NSPCC v Scottish NSPCC (1915)
• Re Martin (2006)
• Martin v Triggs, Turner Barton (2009)
• Gerling v Gerling (2010)
• Re Bimson (2010)
• Austin v Woodward (2011)
• Marley v Rawlings (2011)
• Kerridge, R. and Brierley, A.H.R. (2007) Conv 558
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Ademption
Re Slater
Oakes v Oakes
Jenkins v Jones
Shares: company changing names:
Lawes v Bannett
Watts v Watts
Re Callow
Re Sweeting
Re Clifford
Re Lemming
Brown v Hope
s.33:
Forfeiture rule: Jones v Roberts
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