The Practical Lawyer

Home
About
CPD
Subscribe
Contact
Wills, probate and administration

Intestacy – failure of gift

A purported transfer of a share by the deceased who died intestate ‘fell so far short of the formalities’ that the gift failed as imperfect. 


A deceased London accountant (D) incorporated limited liability companies to hide his financial affairs, often using aliases.

Subscribers only...
 

Wills – testamentary capacity; mutual wills and rectification

It is an established principle that a testator (T) does not require testamentary capacity at the time he executes his will where he knew he was executing a will for which he had previously given instructions. An attempt by a recent claimant to overturn this rule was rejected, and the court held that a distinction is to be drawn between testamentary capacity and knowledge and approval. 


Subscribers only...
 

Succession – mutual wills

Mutual wills are made by at least two people, usually in substantially the same terms and conferring the same benefits to each other. They are preceded by an agreement, effectively a contract, to make those wills and not to revoke them without the other’s consent. A common intention was not sufficient. The agreement can be oral or written but must be incorporated into the will or proved by clear and satisfactory evidence.

Subscribers only...
 

Wills – intention

A will that was hand-written in India in Punjabi script by a deed writer, bore T’s signature and was witnessed and sufficient evidence was produced as to the will’s instructions and contents, was valid. T had expressly confirmed to a truthful and accurate witness that he was giving the instructions of his own free will and not under any threats or pressure by a third party.

Subscribers only...
 

Wills – charitable gifts

In this case, T left her residuary estate worth around £449,000 to the Ancient Catholic Church known as the Church of the Good Shepherd. But there was no existing trustee on T’s death. After an early, successful period in the Church, by the time of T’s death there were just four members. After she died, meetings ceased and the other members left.

Subscribers only...
 

Succession – testamentary capacity

The long-held rule in Parker (1833), that a testator did not require testamentary capacity when he executed his will if he understood the will was one for which he had given prior instructions or had subsequent knowledge and approval of the will, remains good law.

Subscribers only...
 

Wills – testamentary capacity

Traditional principles established in case law that have stood the test of time have not prevented the failure to secure contemporaneous evidence at particular stages in the will making process.

This helpful article sets out the existing rules (and not much has changed since Banks), rationale and best practice on issues concerning testamentary capacity.

Subscribers only...
 

Bank accounts – resulting trusts

Joint bank accounts frequently cause problems on death and a recent case clarified the correct legal principles for such cases. The deceased (D) purchased her council house with help from one of her sons and sold it in 2006. Her cheque for the sale proceeds was paid into a joint account opened in her and another son’s (C) name, D not having her own bank account.

Subscribers only...
 

Wills – mutual wills; testamentary capacity

The courts have set out useful principles relevant in cases of testamentary capacity in the context of wills in the light of recent cases on the issue. In a recent case, T had testamentary capacity at the time of giving instructions for the will, but not when he executed it. But when he executed the will he believed it gave effect to his previous instructions – as it did, and thus reflected his testamentary wishes.

Subscribers only...
 

Wills – testamentary capacity

Bereavement can produce a mental disorder sufficient to deprive the sufferer of sufficient testamentary capacity. In a recent case, T left the bulk of his estate to his sons, leaving a small share each to his daughters. His wife of 65 years died and six days later he made a new will increasing his daughters’ shares. The evidence was that his daughters had urged him to do so to be fair to all four children.

Subscribers only...
 


Page 22 of 32

Most-read articles

Constructive trusts – property
Wednesday, 12 September 2018
The author gives a helpful analysis of a ruling following a claim to establish a constructive trust or proprietary estoppel in respect of a domestic property. The deceased died intestate while living... Read more...
Professional negligence – adjudication
Wednesday, 12 September 2018
The Professional Negligence Adjudication Scheme is run by the Professional Negligence Bar Association. It offers a voluntary ADR procedure, modelled on the adjudication system in construction... Read more...
Waste – L’s liability
Wednesday, 12 September 2018
Ls should be aware of the environmental enforcement obligations that may be incurred as a result of T’s activities. Read more...
Part 36 – late acceptance
Wednesday, 12 September 2018
If a Part 36 offer is accepted out of time (ie outside the 21 day period) in a low value protocol case, then what are the costs consequences? In particular, does late acceptance mean a liability to... Read more...
HMOs – new rules
Wednesday, 12 September 2018
The definition of house in multiple occupation (HMO) changes on 1 October 2018. The new definition covers properties occupied by five or more people, comprising two or more separate households. Read more...
Energy efficiency – reassessment by T?
Wednesday, 12 September 2018
The Energy Efficiency (MEES) Regs mean it is no longer possible to grant new leases to properties with an EPC of F or G. Moreover, existing lettings of F and G properties will become unlawful from... Read more...
Knotweed – nuisance
Wednesday, 12 September 2018
Last year, we had county court claims in Cardiff and Truro in which it was held that the encroachment of Japanese knotweed would be actionable as a ‘private nuisance’. The Cardiff cases have now... Read more...
Procedure – expert witnesses
Wednesday, 12 September 2018
Expert witnesses must comply with court rules and related guidance appropriate to their area of expertise. New guidance for paediatric expert witnesses in family proceedings has now been issued. Read more...
Self-employed – or worker?
Wednesday, 12 September 2018
The Pimlico Plumbers case was seen as a victory for workers in the gig economy, with the Supreme Court looking at the reality of the relationship (rather than the legal labels attached). So, what... Read more...
Offences – mens rea
Wednesday, 12 September 2018
This was a pre-trial appeal of a ruling at a preparatory hearing. The two appellants (A) faced charges under s17 Terrorism Act 2000 of sending money overseas, or arranging to do so, knowing or having... Read more...

Resources

IAG International
In House Lawyer
Join the IBA now!
MSI Global Alliance
www.totallylegal.com