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Definition
| In this case an audio tape was accepted as a valid will. It must be noted that that NSW legislation does not define a document, which allowed for the Court to adopt a wider definition. It is unlikely, in light of s6, that an audio tape would be accepted in New Zealand, but there is a possibility that something like a word document on a computer may |
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| in general terms � a will is a document in writing executed in accordance with certain formalities which is generally subject to probate and which contains statements regarding the disposition of a person�s property on death � it is a characteristic document which is testamentary, ambulatory and revocable |
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| case where the will was written on a tractor fender |
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| Where the will was written on a wall |
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| this was the shortest known will, consisting of three words : �All to Mother�, duly signed and witnessed. On proof that �Mother� meant the widow and it was executed on a certain date, the widow was granted letters of administration with the will annexed. |
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| An envelope containing a list of testamentary dispositions was held to be valid. |
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| the will began �I Emma Cook�� and ended �Your loving mother.� In that case the Court admitted the will to probate; being satisfied that the will-maker meant the words �your loving mother� to represent her name |
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| It is permissible for a will to be signed b some other person (called an amanuensis) in the will-maker�s presence and by their direction |
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| In this case the person was illiterate and a thumbprint was held to be a valid signature. |
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| Where the person is too weak to complete their whole signature a part signature is sufficient |
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| said that the will-maker�s signature must be made by the will maker in the presence of two or more witnesses present at the same time, the witnesses must then state on the document that they were present when the will maker made their signature. This is called attesting. |
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| The will-maker had gone to her solicitor�s office to make her will. As the office was very hot, and the will-maker prone to asthma, she and her witnesses went to her carriage outside of the office to execute the will. The will-maker signed the will, and the witnesses went back inside the office to attest it. The will-maker watched the will being attested by the witnesses through the carriage and office window. It was held that this will was validly attested |
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| Mr C was in hospital when he made his will. The witnesses were the patient in the next bed and a ward sister, they were all assembled and Mr C began to write his signature, but before he could finish it, the sister was called away on an emergency, Mr C carried on, finished his signature then had it witnessed by the patient in the next bed. The sister came back later and added her name. the will was held to be invalid. This was because the will-maker had not completed what was intended to be his signature in the presence of both witnesses before he signed. if when the sister returned, Mr C had acknowledged his signature, the sister had signed and the other patient had signed again, the will would have been valid. The law in England has since been changes so such a situation would not now occur. |
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Definition
| A will-maker was a person who came from Belgium, two days before he died, he made a will that excluded his father and his sister and he left all of his property to a non-relative. He signed his will in the presence of two witnesses, he was in bed in his bedroom. The witnesses then moved to a table in the kitchen to sign. The kitchen was portioned off from the bedroom, and it could not be proved that the will-maker could see the witnesses when they attested the will. They should have, of course, completed their signatures in the will maker�s presence |
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Definition
| An affidavit was given which told of the will being read out to the will-maker before it was signed and of the will-maker giving instructions to the lawyer to sign it for him. After the lawyer had signed it, the witnesses signed it. These people were all present at the same time. The affidavit did not say that the will-maker had acknowledged his document as his will and it also did not state whether the witnesses, when signing the document, were in a position where the will-maker could have seen them if he had not been blind. |
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| Section 13(1), Wills Act 2007 |
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Definition
| Witnesses affected by dispositions made to them (1) A disposition of property in a will is void if--- a. the disposition is to a witness; or b. the disposition is to a witness's wife, husband, civil union partner, or de facto partner; or c. the property would go to a person claiming under a person described in paragraph (a) or (b). |
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Definition
| In this case a man made his will and it was properly witnessed by two independent witnesses, after the proper witnesses had occurred the man was not satisfied, so he got his daughters to sign it as well in order to �make it stronger�. The English CoA held that because the daughters signed the will, the gift to them was void. |
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| Section 13(2), Wills Act 2007 |
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Definition
| Gifts to attesting witnesses may be saved in four different circumstances. A) the will has at least 2 witnesses who are not described in the subsection; or B) the disposition is the repayment of a debt to a person described in the subsection; or C) all the persons who would benefit directly from the avoidance of the disposition consent in writing or electronically to the distribution of the property; and have legal capacity to give consent; or D) the High Court is satisfied that the will-maker-- knew and approved of the disposition; and made the disposition voluntarily |
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| only applies to wills made on or after 1 November 2007 |
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| A witness to a will may validly be appointed as the executor, s 12 of the WA says that if a will appoints you as executor and you witness the will, you are still validly appointed as the executor. However, one will not be able to take advantage of any section of the will that allows you to be remunerated for your services. And if a lawyer attests the will, then they will not be able to apply the charging clause. If a partner in the law firm attests, however, they will be able to |
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| Section 14 Wills Act 2007 |
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Definition
| High Court may declare will valid (1)This section applies to a document that-(a) appears to be a will; and (b) does not comply with section 11; and (c) came into existence in or out of New Zealand. (2) The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person's testamentary intentions. (3) The Court may consider---(a) the document; and (b) evidence on the signing and witnessing of the document; and (c) evidence on the deceased person's testamentary intentions; and (d) evidence of statements made by the deceased person. |
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Definition
| In this case, a will-maker had handed her will, which she had signed to her nephew and asked for him to get it witnesses. The nephew took the will to two neighbors, separately, each of whom signed as witnesses. The signature and the attestation was defective in this case, nevertheless the will was admitted to probate. The court held that there was no doubt that the will-maker intended the document to be her will and therefore it was admitted to probate. Jacobs J decided that matters had to be proved beyond reasonable doubt that the document for which probate was sought was intended to be the will-maker�s will. The judge said that in most cases, the greater the departure from the formalities, the harder for the court to reach that conclusion. |
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Definition
| There is was said that to constitute a will, the document must, while falling short on the formalities, show that it was intended by the deceased to govern the disposition of their property after death. 1. It must state the deceased�s testamentary intentions. 2. It must not bind the deceased during their life time. 3. It must be intended by the deceased to constitute their will. ....Mr M was 81 at the time and Miss P was 31, the estate that he left was about 500,000. The letter was a bit incoherent, it began by saying that �I am still puzzled why you came here last Tuesday prepared to cut strips off me� and it ended stating �you are very pretty�. At one point in the letter, he states that �just in case I die, everything I own with the exception of some bank accounts goes to you.� The letter was signed, but there was no witnesses � the Court concluded that M M was merely lonely and there was no firm intention that he should leave his estate in the manner mentioned in the letter. On another occasion Mr M was in hospital and he indicated that he wanted to leave a life interest in a property to a young volunteer at the hospital, with the remainder going to a charity. A solicitor was called to make a proper will, but Mr M declined to make one. Instead Mr M gave a note to his friend which indicated that another lady should live in his house until she died � this was written on a scrap of paper and was incomplete. The court held that Mr M knew perfectly well how to make a will and he did not intend the note to be his final testamentary will |
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| Estate of Beavis; Public Trustee v Nicholls |
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Definition
| There a old man died and a document was found in his kitchen � it left his property to a near and dear neighbor. It was signed, but not witnessed, the document was in the form and language of a will � there was a revocation clause and so on and parts of it appeared to have been copied from a previous will. After hearing evidence about it and being satisfied that the document was genuine the court admitted it to probate |
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Definition
| Mr V went to the public trust and gave instructions for a will which was drafted for him, on the day which he was meant to execute it � he committed suicide. He left a note which made it plain that the instructions he left with the Public Trust was to constitute his will and the Court thought that it could be admitted to probate. |
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Definition
| The courts have suggested that it might be a wise practice for solicitors to get the instructions signed as evidence that they intended to be the will |
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| Clauses such as s14 are designed to avoid the failure of wills caused by non-compliance with the formalities arising out of ignorance or inadvertence. |
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| Estate of Wilson and the Estate of Masters |
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| Merely precatory words have been rejected as wills for having the requisite lack of intent |
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| Terminally ill Mr H discussed his plans to make a will with his daughter and partner. His lawyer drafter one and sent it to him saying that he should read it over and if he wanted to make any changes to just get back to her. Never got in touch with her and it was left on the dining room table. the document was not valid unless it could be validated under s14. The document appeared to be a will, but it did not comply with the requirements of s11. The Judge also considered Professor Peart�s essay: Where There Is a Will There Is a Way where she noted that in New Zealand the document must appear to be a will and the court must be satisfied that the document expresses the deceased�s testamentary intentions. A draft or note which may not have intended to be a will, but is drawn in such a way that it appears to be one, and which expresses the deceased�s testamentary intentions could be accepted here where it might not in Australia. So the Judge stated that he had to determine whether the document did in fact express Mr H�s testamentary intention. As he saw it there were three possibilities: (1) He had changed his mind; (2) He had forgotten about it; (3) He did not think that he had to do any more. If the Court was satisfied that the document did express his testamentary intentions, then (arguably) him forgetting about the document would not change that fact. The Judge thought that the last situation, which meets the statutory test for s14, was the most likely case |
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| The court discussed Re Hickford and the judge said that he did not agree with Justice Mackenzie to meet the statutory test, the case had to fall within the third category ; the judge said that there was another possibility. Rather than overlooking or forgetting to sign a will a person may intend to do so, but never get around to it before their death. This was applied in this case and the will was validated |
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| Justice Mackenzie referred to Gladwin and said that in stating the three possibilities he had not made it sufficiently clear that he had intended to confine his remarks to the circumstances of that case and that he did not intend to suggest that those would be the only possibilities that might arise � there were other possibilities and each case must be decided on its own facts. |
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| In this case T MacNeil died in Adelaide, but she left property in New Zealand and her will was submitted in the HC at Timaru. Ms McN committed suicide and the document she left was a ten page handwritten document written shortly before she dies. She had headed it up with �will and Testament� and on the first page she left all of her property to her friend, the rest of the document consisted of song lyrics and was not testamentary � she signed the document but there were no witnesses. The judge had no trouble finding that the document expressed the deceased�s testamentary intentions and admitted it to probate as a valid will |
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Definition
| In this case the Public Trust prepared a draft will on the instructions of the deceased, the Public Trust legal advisor recorded the instructions on her computer as they were dictated in the office of the Public Trust � with the deceased checking and approving the instructions so recorded. He died before the will could be signed and witnessed. The court held that the draft will was the valid will of the deceased. |
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Definition
| Mr Z was a migrant, who had been in NZ for about 10 years, but he made a document entirely in Chinese � this document disposed of his property. He signed the document, but he did not get it witnessed. Mr Z, however, referred to the document as his will and he said in it �reason for making the will, as anything may happen to me at any time, I am hereby making a will to indicate how I want my property/debts to be dealt with after I die.� On hearing evidence from the deceased�s son about the circumstances in which the document was made and on looking at the contents of the will itself the judge declared that he was satisfied on the balance of probabilities that this document expressed Mr Z�s testamentary intentions. And he thought that the will was not properly executed and witnessed because of Mr Z�s lack of understanding of NZ law. From the judgement there is no direct statement as to when the document was made. It could, of course, because the wills amendment Act was not yet in force, could only be validated if it was made on or after 1/11/07. The only mention by the judge of this crucial point is that evidence was given by the son of being shown the document in some time in 2008 or 2009. |
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| In this case the lady was elderly and blind and she had a valid will, but she decided that she want to change it because some of her beneficiaries had died. He lawyer received a letter from her giving her instructions and he then spoke to her on the phone, he then drafted a will in accordance with those instructions. She dies, however, quite unexpectedly before the will could be executed, the court held that the reasons the will-maker had for changing the will were entirely reasonable ones, there was no doubt about her capacity or about whether her instructions were correctly recorded. Furthermore no one was going to be disadvantaged by accepting the later document, so the unexecuted document was declared a valid will |
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Definition
| In this case an elderly woman decided that she wanted to change her will, she wanted to remove a gift to an existing beneficiary from an already existing, properly executed will. He was the person who contested the will later. The old woman gave instructions to her lawyer by phone; the lawyer drew up a will in accordance with those instructions and sent it to the old lady. She, however, by this time was in hospital. The letter containing the document was delivered to her, she was pleased to have got it and was about to sign it when dinner arrived � so she put it aside. She died quite suddenly over night. In his decision, Justice Andrews notes that because of the difference in wording of the relevant statute, Australian cases should be treated with caution. He went on to consider the evidence - the will followed the instructions accurately, the old woman had capacity, she had discussed the changes with other people, there was no evidence that she had changes her mind and so on. The judge noted the three alternatives mentioned in Re Hickford, and he thought again there was another possibility; she had not changed her mind, she had not forgotten about it, she knew she had to do more, but in this case she simply died before she was able to do so. This is what the judge decided and therefore declared the will valid. |
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Definition
| In this case there was only one witness and the will was validated. |
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| in this case the will-maker made a note saying what was to be done with the estate, there were no witnesses and the will maker committed suicide. That was validated by s14. |
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Definition
| in this case the will-maker had made a valid will, but she made it in SA and then later there was a codicil. The codicil had one witness who was the house made and she had subsequently died. The HC said that the codicil could be validated by reason of the definition in s8(3)(2). |
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| Section 8(4) Wills Act 2007 |
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Definition
| A person who may dispose of property during his or her life by a document creating a valid power or trust may dispose of property by his or her will by creating a power or trust of the same kind. This only applies to wills made on or after the !st November 2007 |
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| The wife died and the husband inherited the wife�s property by the mutual will. Under this will he promised not to revoke and the will said that the property was to go to the only son. Sometime after Mrs G had died, Mr G married again, he makes a new will and leaves it all to his new wife. He died and there is a dispute between the second wife and the son. |
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Definition
Provides the rules for mutual wills, applies on to wills made on or after 1 Noverber 2007. For wills made before this time the common law applies, but the statutory provision has been described as a �crisp restatement� of the common la and not a change, so the approach in both cases will be much the same.
Under the common law the matter was resolved by an application of an equitable doctrine; where there equities are equal the first in time prevails. So in Re Goodchild the child competes with the claim of the second wife. Therefore in this particular case of mutual wills the son was entitled to the property |
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Definition
| in this case a husband and wife made mutual wills, the wife died and the husband inherited. The husband remarried and the property went to the new wife in the second will. The children challenged the estate. The HC of Australia agreed that a will was always alterable, but that did not mean that he could deal with the property left to him by his first wife as he pleased. The property the will maker received from the first wife�s mutual will, pursuant to their agreement, would be covered by constructive trusts. The HC went on to say that he received property from his wife but only on trust, he was given it on the promise that he would pass it onto the children. The second will was still valid, but because he was not the beneficial owner of the property, it would not reach those named in the will. |
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| Hammond J; �the answer on the law as it now stands appears to be if it can be shown that (a) there was a mutual agreement between the parties to dispose of property in a particular way and,(b) not to revoke his or her will without the knowledge of the other, and (c) the survivor is broken such pact ? a trust may be imposed on the personal representatives of the survivor who will then be required to hold the property on the trusts for the beneficiaries of the will which the survivor undertook to be his or her last will. This means that the second will is still valid, but so far as the property left to the husband (or wife) by the first partner, that is covered by a prior trust. The first equity, that of the children, prevails over the second equity � that of the second wife. There must be an agreement that the wills are irrevocable. In this case, it was said that just because two people make identical wills it does not mean that they make mutual wills � it must be shown that the parties agreed not to revoke their wills. This may be shown by what is said in the will and by external evidence. If one party revokes before anyone has died then there is no mutual will � but you have to inform the other party. |
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Definition
| this involved a farming family where the husband and wife had made a will in identical terms, the dispute arose because the son benefitted much more than a daughter. The court held that there was no mutual will. The judges said that the courts would be slow to find mutual wills, just because the wills were in similar terms. The fact that the will-makers had consulted with each other and had made wills in a certain way was not enough; the applicant must prove on the balance of probabilities a clear and binding understanding not to change or revoke the will. Where there was a mutual will, the CoA said, the survivor would be bound by it � but it would be taken that he or she would pass on what they had not sold, expended or consumed provided that they did not act deliberately to defeat the purposes of the arrangement. The CoA noted that mutual wills were reasonably rear and that they were undesirable |
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Term
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Definition
| The document must be intended to operate to dispose of his or her property after death. This is sometimes called testamentary intention. An instrument that is merely precatry or merely explanatory will not be a will. |
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Definition
| In this case a document merely explained to executors what was to be done with asset, this was held not to be a will |
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| the deceased and his friend had a habit of drawing up legal documents for fun to see who could produce the shortest ones. The deceased wrote out a will and executed it and gave it to his friend stating �that is as good of a will as I shall ever make.� It said: �I leave my property between my children, I hope they will be virtuous and independent and that they will worship god.� A year or two later the man who wrote this died, the will was not admitted to probate, being made in jest and without the necessary testamentary intention |
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| In this case a master mariner on a trip to London to Sicily stopped at a port in France and made a will. The will said something to the effect that if he happened to die on the return trip from Sicily then�(and outlined testamentary dispositions). The court held that this made the will conditional on the man�s death on the voyage alone, he in fact got home safely and did not die until two years later. The condition had not been met and therefore was invalid. |
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Definition
| In this case a woman owned two farms, one occupied by her nephew and the other by her niece. In February of one year she made a will leaving them her farms. In September that year she changed her mind and decided to give the her farms, the conveyanceing took some time. While they were going through she made a new will reflecting the fact that she had given her niece and nephew her farms. When she came to sign the will the gifts were not yet complete � on the advice of her solicitor they did not date the will � she and her solicitor thought that this meant the will was not operative. On Christmas day the conveyance of the farms became complete, on Boxing day the solicitor dated the will. As they saw it, the will was not meant to come into effect before the farms were conveyed. The lady died a while later without sighing new wills. The September will revoked the earlier will and made different gifts - the September will was challenged and the CoA upheld the challenge. First the CoA said that it was a mistake to think that a will does not come into effect before it is dated; they come into effect as soon as they are executed. The lack of a date does not postpone their execution. Accepting the September will came into effect when it was executed, the court then looked at what it was meant to be, the old lady had it in mind that the will was not to come into effect until the will passed into the hands of the niece and nephew � on the face of it the September will was unconditional. You could make a conditional will, but it had to be stated in the will � in the September will there was no such condition. This meant that the old lady thought she was signing a conditional will but in fact she was not. She lacked the required intention for the document to be her will, because she was not executing what she thought she was executing. The result was that the September will was invalid, and the earlier February will took effect � this did not effect the farms, but it did other dispositions. |
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Definition
| John Banks made a will in 1863, he had been confined as being of unsound mind as far back as 1841. Although discharged he remained subject to certain fixed delusions, he had for examples a violent dislike of a man named Featherstone Alexander, and even after FA�s death he continued to believe that that man pursued and molested him. The mere mention of his name set him off on fits of rage. He also believed to be pursued and molested by evil devils, which he could actually see. A doctor was treating him for epilepsy and considered him to be insane. On the other hand Banks manages his on money affairs and was careful with his money. On the facts it was found that the will-maker, although of weak intellect, was generally able to manage his affairs and that the insane delusions he was labouring under did not influence him in the disposal of his property or make him incapable of rendering a will. The question was whether partial unsoundness of mind was sufficient to deprive a person of their ability to make a will. This does not mean that the will-maker must show what other people think is sound judgement in the provisions of the will; it is rather that no order of the mind should poison or pervert his sense of right � no insane delusions should influence his will in the disposal of the property. There are really three requirements; 1) The will maker must understand the nature of the act of making a will and its effects; 2) The will maker must understand the nature of the act of making a will and its effects; 3) The will maker must understand the moral claims that he or she recognises in making the dispositions in the will. |
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Definition
| A will maker, Danny Burn, had collapsed unconscious one morning and had been taken to hospital. While he was in hospital the solicitor was called and took instructions for a will, the solicitor went home, got the instructions typed up and then went back to the hospital to have the will signed. The will-maker had collapsed at 8:30 am, the instructions taken at 3pm and signed at 6pm. Although there were lay witnesses who claimed that the will-maker appeared to be of full capacity, the evidence of the doctors who were there was strongly that he had not � the trial judge accepted that evidence. The solicitor made no inquiry as to the mental state of the will-maker; he did not even ask why he was in hospital. The will-maker was subsequently discharged and lived for a few months, during which time he spoke of the will and his satisfaction with what he had done. What he had done was leave the will to people that had taken care of him � a kind of second family. He left nothing to his closest relations; the children of his brother. The court found that he lacked testamentary capacity and the will was invalid. The property went on intestacy to the children of the brother. |
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Definition
| This concerned a will that had been taken from a successful businessman. The time that the will was taken he had had a stroke. The will, on the face of it, was not unusual, but it was challenged because it left substantially more to one son than to another. There was a sound reason for this, but the challenger to the will suggested that the old man lacked capacity to make the will. Contrary evidence was given by doctors. In the CoA it was decided that the man had capacity and the will was valid |
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Definition
| In this case the judge said �no man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good. A will maker is permitted to be capricious and improvident and is moreover at liberty to conceal the circumstances and the motives by which he has actuated in his depositions. Many a testamentary provision may seem to the world arbitrary, capricious, and eccentric. For the will-maker, if he could be here, it might account as a most satisfactory will |
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Definition
| This case involved a will in which there appeared to be a mistake, the will referred to a forth schedule rather than a fifth schedule and the appellants in the case was asking the courts to change the fourth to the fifth. One argument was that as it was written the will was odd and unfair. The court agreed, but if the will was changed, then the will could be fairly deemed to be well considered, rational, careful and just. If the will was left as it was, the will was eccentric, capricious, arbitrary and unjust � but the court said that this wasn�t everything for the will maker has a right to be eccentric, capricious, arbitrary and unjust. In light of this, one could not argue that there was lack of capacity simply because the will was eccentric and so on. That aside, it was clear that the slip was inadvertent and the requested change was made |
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Term
| Chambers & Yatman v Queen�s Proctor |
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Definition
| A man had been insane for many years, it was nevertheless held by the court that on the day which he made his will he had enjoyed a lucid interval. This was the case even though the next day his insanity returned and he killed himself. |
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Definition
| Here the will was made by a lady who was 94 � after she had been admitted to hospital following a stroke, the problem was not mental illness but intellectual impairment due to a stroke. The purported will of this old lady changed dispositions considerably from a will which she had made 15 years prior. There was considerable evidence that the woman had been disorientated when she was first admitted, but she had recovered a day or two later, but then she lapsed into substantial incoherence. The proponent of the will asserted that she was lucid at the time she made the will and this was upheld by the HC. The CoA reversed the decision. the court said that the first point to be made is that this was a case in which the proponents for the hospital will were always faced with � you have a seriously ill person of advanced years making a will in a lucid moment when it was common ground that for much of the relevant period she was not lucid. The court said in such a context the court will be even more conscious for the need of a clear demonstration of testamentary capacity. |
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Definition
| In this case the person had Parkinson�s disease and was suffering from debenture. The family argued that she did have testamentary capacity but the court decided otherwise |
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Definition
| The will was rational on its face, but the will maker�s daughter challenged it on the grounds that when it was executed her father treated her in a strange and irrational manner. There was evidence that the father had an irrational aversion to his daughter and had refused to see her for several years. He had demonstrated violence and irritability towards her. She, or as far as the courts indicated, was decent, modest, patient and kind. The will was held to be void because of his morbid delusion. |
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Definition
| Another argument in this case was that the old lady lacked testamentary capacity. The argument was that she went from time to time into trance-like state and spoke to the spirits. This trances were called wairangi. It was argued that this indicated that she did not have testamentary capacity. The court found that there was no evidence that the old lady was in a permanent trance, nor was there any evidence of any mental illness where by the deceased lacked testamentary capacity when she executed the will. Nor could an inference be drawn based on episodic intervals of trances to invalidate the will at the time that it was executed. |
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Term
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Definition
| A will was challenged and one of the grounds was that the dieing will maker did not accept that he was dieing and still hoped for a cure. It was alleged that this was a delusion that indicated that he lacked mental capacity to make a will. The judge said that the delusion was more wishful thinking � he had strong religious beliefs and his belief that a cure would be found was based on that. It did not indicate any lack of mental capacity. |
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| Re Shirlock (Dec�d) ( also called Ryan v PT ) |
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Definition
| The chief justice observed that after due inquiry, capacity is in doubt, then the will should be made accompanied by a full record of opinions so that if need be the court can adjudicate. In this case a very elderly and occasionally confused will-maker went to the public trust to make her will. She saw a public trust officer who was not a solicitor who decided of her own bat , after talking to a matron, but without getting further medical evidence, that the will-maker did not have testamentary capacity. She did go on and draw up the will, but then she decided not to get it signed by the old lady. Quite a few people lost benefits because of this, and damages were awarded against the public trust for negligence. The Chief Justice set out what was required: A duty of care is owed by a solicitor, or the public trust, to a will-maker. In those circumstances a reasonably competent solicitor would get a doctor, who must find that the will-maker knows what he or she is doing, knows what property he or she has got, and knows the names of the relatives and the claims that they might have on the will-maker. The doctor should also be able to give evidence on the presence or absence of any other factors which might distort the will-maker�s decision. |
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Term
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Definition
| In this case, a will of a dr. Ashley was challenged. He was a retired general practitioner of medicine, he had become addicted to self-prescribed drugs. His daughters sought to show that he did not have capsoty because of that and because, once when he was in hospital he got cross with them because he got cross with them for bringing a dog into the ward � the problem was that there was no dog. He also caught pneumonia from washing the car in the pouring rain. He was also suffering from depression. On the other hand, after these episodes he lived with a companion, he played bridge and went on holiday to Fiji. The solicitor who took the will noticed nothing to give rise to suspicion and the will was upheld. |
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Term
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Definition
| This was concerned with a 94 year old who had made several wills. The last was held to be invalid because of her lack of capacity; this meant that an earlier will was operative. It was not, as you would expect, anyway invalidated by her later incapacity. The question is always the capacity of the will-maker at the time of making the will. |
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Term
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Definition
| Before a will can be admitted to probate it must be shown that the will-maker was a person of sufficient mental capacity; that in the absence of any evidence to the contrary it will be presumed that the document has been made by a person of competent understanding; that once a doubt is raised as to the existence of testamentary capacity the onus then rests on the person propounding the will to satisfy the court that the will-maker retained his mental powers to the requisite extent; that in the end the tribunal must be able to declare that it is satisfied of the will-maker�s competence at the relevant time, but that a will will not be defeated merely because a residual doubt remains as to the matter �� |
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Term
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Definition
| if a will-maker when mentally able has given instructions to another person, usually a solicitor, to prepare a will and the will is in fact prepared in accordance with those instructions, then the will is valid even though when it is actually executed the will-maker is no longer mentally capable of making a will. |
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Term
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Definition
| A cautionary note was expressed in this case regarding the potential for abuse that the rule offers when the instructions for the will are relayed through a third party to a solicitor. This is especially so if the third part benefits under the will. |
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Term
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Definition
| Blind, mute or illiterate will-maker ? in the case of blind, non-speaking or illiterate will-makers, positive evidence is required to show that the will was read to the will-maker before execution or that in some way the will-maker had knowledge of its contents |
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Term
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Definition
| It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. |
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Term
| Section 15 Wills Act 2007 |
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Definition
| A valid will, or part of a valid will, may be changed, but only by one of the following means: (a) the change is� (i) written on the will; and (ii) signed and witnessed as described in�section 11(3) and (4), with the signatures written beside, or near to, the change; or (b) the change is described in a note� (i) written on the will; and (ii) signed and witnessed as described in�section 11(3) and (4); or (c) the change is the obliteration of words in the will in such a way as to prevent their effect being apparent; or (d) the change is declared valid under�section 14; or (e) The change is done under�section 34(2). |
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Term
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Definition
| When a codicil is made, it will usually refer to the will that it is amending, or make clear that the codicil is to be read as part of the will. If this is so, it is then said to be republishing the will by the codicil � the effect of this is to bring the date of the will back to the codicil. |
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Term
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Definition
| In this case a will maker left his property to his youngest son Joseph, he later made a codicil which republished the will � by that time the original son called Joseph had died, but another son, now the youngest and also called Joseph had been born. It was held that although the first will had been speaking of the first son, by its codicil it was republished and construed as referring to the second son. |
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Term
| Section 16 Wills Act 2007 |
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Definition
| A valid will, or part of a valid will, may be revoked, but only by one of the following means: (A) the will-maker makes a later valid will; or (B) the will-maker writes a document that---(a) makes clear his or her intention to revoke the will or the part; and (b) complies with section 11; or (c) the will-maker marries or enters a civil union and the will or the part is not saved by any of section 18(2) to (4); or (d) the revocation is done under section 34(2); or (e) the will-maker, with the intention of revoking the will or the part, destroys the will or the part; or (f) the will-maker, with the intention of revoking the will or the part, directs another person to destroy the will or the part in the will-maker's presence; or (g) the will-maker does anything else in relation to the will that satisfies the High Court that the will-maker intended to revoke the will; or (h) the revocation is declared valid under section 14. |
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Term
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Definition
| There, in 1975, Mr A made a will. In 1978, Mr A went to another solicitor and made a new will, which revoked all former wills. In 1984 Mr A went back to the solicitor who had prepared the original � 1975 � will and made a codicil to it. Later, he made two more codicils, both referring to the 1975 will. The first codicil in 1984 revoked the appointment of certain named executors �of my said will� � this only made sense if it referred to the original 1975 will, because one of them wasn�t an executor to the 1978 will. This codicil also said that in all other respects I confirm my said will. Tipping J held that the first codicil in 1984 has revived the 1975 will and impliedly revoked the 1978 will. Normally, revocation will be expressed, but the same result can be achieved where there is some writing appropriately executed, which by clear and necessary implication must be taken to have revoked an earlier testamentary instrument. The first codicil in 1984 had expressly revived the original 1975 will � with the words about confirming it � because the 1978 will was inconsistent with the 1975, it was clear by implication that the 1978 will was revoked by the 1984 codicil. |
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Term
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Definition
| An old lady had made two wills in 1947 and 1960. She then made another holograph (hand written) will in 1968 � it said �I leave all my property and my car to my nephew Jim Derek Driver.� It did not revoke the earlier wills, but the court held that the earlier will were impliedly revoked. It used two pieces of extrinsic evidence to back up this point. One, was that circumstances had greatly changes; one of the beneficiaries and her brother had dies in the mean time, but also the old lady had added to the will after it had been executed �emergency will � old will cannot now stand�. Those words could not be admitted to probate as part of the will because they were added after the will, but they were admissible as evidence as to the will-makers intention to revoke the previous will. |
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Term
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Definition
| Mr G had obliterated the first codicil to his will by crossing it out by thick black marks and writing at the foot of the page: �we are witnesses to the eraser of the above�. He then signed it and had two witnesses sign it in the prescribed way. The judge held that �the intention of the will-maker is so manifest and the writing though it does not come up, quite to the letter of the statute, is so clearly in its intention that I grant the application and exclude the first codicil to probate.� |
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Term
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Definition
| In Feb 1927 a man�s wife dies, in June 1927 he made a will which said that the will was made in contemplation of marriage, he married for a second time in June that year , he died 10 days later. The question was whether the will was made in contemplation of the marriage. The evidence was that, although he said before he wrote the will he was making it in contemplation of marriage, he had not actually proposed to her. When he initially proposed, the woman refused him � she did not accept until August. The Judge decided that this was not a statement about a contemplation of a particular marriage, because there was at that time no particular marriage to contemplate. |
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Term
| Burton v McGregor , Public Trustee v Crawley, and Re Whale |
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Definition
| held that it was not enough simply to refer to �my fianc�� or �my future wife�. |
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Term
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Definition
| The judge said �a disposition in a will in favour of �my finance� only establishes that a marriage is contemplated. It does not necessarily represent that the will is made in contemplation of that marriage with the concurrent intention that the will is to survive the marriage |
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Term
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Definition
| Mr S made a will in July 2007, at that time he was engaged to a person called Kiri Brown. He also knew that he was dying of cancer. In November, after the doctor told him he only had two months to live, Mr S married Miss B and then Mr S died a couple of days after Christmas. The question for the court was whether, when he made his will in July (he was engaged at the time) had he made it in contemplation of the marriage that took place? This was important, because under the will half of his estate went to his parents and half to his wife. If the will was not made in contemplation of marriage then it was revoked , dying intestate. The s 77 Administration Act will apply and the wife receives all of the property. The estate wasn�t large and the biggest asset was the house. The will was not expressed to have been made in contemplation of marriage � so the question for the judge was whether the circumstances clearly show that it was made in contemplation of marriage. Mr S had made the will with the public Trust, its practise was to run through a checklist of questions; one of which was �is this will being made in contemplation of a particular marriage?� Mr S answered no to that question, which might be taken as conclusive, but the judge found that that did not end the matter. There was no evidence that the significance of the question was explained to Mr S and there was no evidence that he had thought about the matter. The Judge went on to consider the facts more closely, and he said that the circumstances had to show clearly that the will was made in contemplation of a particular marriage. Evidence showed that Mr S had spoken about getting married, and he had brought an engagement ring for her. However, although he had a serious illness and he knew he was likely to die, he had turned down one opportunity to get married in May. He did not begin to make serious plans for a marriage until August, which was after he had made his will. The conclusion the judge came to was that in the circumstances it was too equivocal to make a safe finding that Mr S made his will in contemplation of the marriage that he later entered into. He made his will because he was ill, that meant that Mr S�s will was revoked by the marriage and he died intestate. |
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Term
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Definition
| On September the 4th Margaret Panapa made her will stating that the will was made in anticipation of her marriage to a Wayne. The will said that the contents of the will were to apply after the marriage to him. The will left everything to this Wayne. She was due to get married two days later; however she died on the eve of her wedding. The question for the court was to ascertain the true meaning of the clause which read �in anticipation of the marriage� the contents were to apply after the marriage.� Did this, particularly the last phrase, make the will conditional upon the marriage? If it was a conditional will then it would not have come into force. To decide whether it was a conditional will, the judge said, the court had to consider the whole language of the will and the circumstances in which it was made. He decided that the words �in anticipation� meant �in contemplation� � the words �its contents are to apply after my marriage� were explanatory, added for emphasis and to make sure that the will was not revoked by the marriage. |
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Term
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Definition
| a will maker took his will out of the bank where it had been stored for safe keeping, it was found after his death at his house. One part of his property was left on trust, but the will maker had cut out part of the first page saying who the trust was to benefit. The will maker�s signature and those of the witnesses were intact. The judge found that the man had no intention of revoking the entire will, only the part that was missing. He thought that the will-maker obviously either intended to leave the property in that part of the will to go on an intestacy, or more likely he intended to re-write the will but never go around to it. Whatever the case, the judge held that there was a valid partial revocation - the rest of the will was admitted to probate. |
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Term
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Definition
| A will maker in a fit of anger at a potential beneficiary named in a will tore the will into four, he did not go any further, partly because he was stopped by a by stander who seized him by the arms and partly because of the apology of the potential beneficiary. The will-maker then became calm and fitted the pieces together saying �it is a good job that it wasn�t worse.� It was held that he had not done all that he intended to do to revoke the will. The will was therefore not revoked. It seems that if he had only intended to tear it into four, the suggestion was that he was going to do something further. |
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Term
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Definition
| the will-maker gave directions for the will to be burnt. It was taken to another room to actually burn. This was held not to be in the presence of the will-maker. A lady made a will which she had properly signed and attested she then showed it to her sister-in-law who got extremely angry because she and her husband were not mentioned in it. The sister-in-law tore it up and threw it on the fire. She then told the old lady to write a new will, saying if she did not then it will all go to the old-lady�s brother on an intestacy. Later the sister-in-law apologised and the old lady forgave her, but the old lady never go around to writing a new will. It was argued that the old lady had ratified the destruction of the will, but the court on the evidence specifically found that this was not so. The judge did, however, doubt that any subsequent ratification would have validly revoked the will. As it turned out the lady did not die intestate, another copy of the will was found. |
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Term
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Definition
| It is not possible to ratify a previously unauthorised destruction, if someone destroys the will without directions and you later ratify it, that is not valid |
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Term
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Definition
| A woman mutilated her will with a ball point pen. The heaviness of the scoring varies in different part of the will, but the signatures of the will-maker and the witnesses had been so heavily scored out that it was impossible with the naked eye to see if there were signatures and if so whose they were. Taken with evidence of the woman�s intention to revoke the will, the court held that by crossing out the signatures in this way the woman had validly revoked the whole will. |
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Term
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Definition
| the will-maker was an alcoholic and in a fit of DTs he tore up his will. his wife collected the bits together without telling him, later on he could not remember that he had ripped up his will so he said to his wife that he would make a new will, but he did not get around to it by the time that he died. It was held that the will had not been validly revoked; the man did not have the intention to revoke the will. |
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Term
| Sugden v Lord St Leonards |
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Definition
| Lord StL was a former Lord Chancellor, his will was missing at his death and had to be proved by the evidence of his daughter. There is a fable that she had been accustomed to read the will over to the old fellow as he lay in the bed each night, which is why she knew what the will contained. However, when she came to give evidence she was so nervous that she forgot everything she intended to say. Counsel, seeing her state, took up a glass of water and slurped very noisily. This, he hd been told, had been the habit of old Lord StL as she read the will. On hearing the noise the daughter was able to recount the contents of the will. |
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Term
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Definition
| the judge said of the words �dependant relative revocation�- it seems to me to be somewhat overloaded with unnecessary hollow syllables, the resounding adjectives add little, it seems to give no idea of what it is meant. You can describe what is meant by the term simply by the word conditional. |
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Term
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Definition
| A woman made a second will that revoked her first, but the second will did not dispose completely of her property � the first will had, but not the second. Both wills were home made on a form which she had bought at a stationary shop. Chief Justice Wild held that the evidence was clear that in revoking the first will, the will maker thought she was disposing of her property in the second will; this made the revocation conditional on that being the case. Since it was not, and since it was clear that she wanted some of her property to go according to the provisions of the first will, the judge held that the revocation was invalid so far as it applied to dispositions which would not be made if the first will was revoked entirely. So he admitted both wills to probate with the revocation of the first will applying only to dispositions that the second will covered |
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Term
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Definition
| Mr S had not made a will for long period because he believe that it would go to his wife anyway. On the eve of a trip to the US Mr S made a will leaving everything to his wife, with other provisions in case she died before him. When the two of them got back to England, he was cleaning out the pockets of his jacket and he said to his wife �well we got home safely, we don�t need this anymore.� He then burnt it. He still thought that when he died his wife would inherit all the property. That was not true at the time in England; his property would pass to his heir at law, which was his father. Mr S died and there was a contest between Mrs S and the father as to who got the house. The English CoA held that the revocation of the will was dependent upon a condition which was not fulfilled and was inoperative; the contents of the will that had been destroyed were admitted to probate |
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Term
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Definition
| In this case, the couple�s marriage was dissolved, the will-maker had made a will before the dissolution of the marriage who left the entirety of his estate to his former wife, he did not change his will after the dissolution. By the operation of the section, she could not take the gift, it was left on an intestacy and was administered according to s77 of the Administration Act |
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Term
| Section 19(1) Wills Act 2007 |
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Definition
| This section applies when; a) a will-maker makes a will; and b) after the will-maker makes the will, an order of a kind described in subsection (2) is made to which the will-maker is a party; and (c) the order is in force when the will-maker dies; and (d) the will contains a provision of a kind described in subsection (3). |
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Term
| Section 19(2) Wills Act 2007 |
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Definition
| The orders are; (a) an order made under Part 3 of the Family Proceedings Act 1980; or (b) an order made under section 42 of the Family Proceedings Act 1980; or (c) an order or decree corresponding to an order described in paragraph (a) or (b) made under an earlier corresponding enactment; or (d) an order, decree, or enactment corresponding to an order described in paragraph (a) or (b) made outside New Zealand that is recognised by the courts in New Zealand |
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Term
| Section 19(3) Wills Act 2007 |
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Definition
| The provisions are (a) the appointment of the will-maker's spouse or partner as executor or trustee or advisory trustee of the will-maker's will; or (b) the appointment of the will-maker's spouse or partner as a trustee of property disposed of by the will to trustees on trust for beneficiaries who include the spouse's or partner's children; or (c) a disposition to the will-maker's spouse or partner, except for a power of appointment exercisable by the spouse or partner exclusively in favour of the spouse's or partner's children; or (d) a disposition for the payment of a debt secured on; (i) property that belongs to the will-maker's spouse or partner; or (ii) property that devolved by survivorship on the will-maker's spouse or partner |
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Term
| Section 19(4) Wills Act 2007 |
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Definition
| The following apply to a provision of a kind described in subsection (3): a) the provision is void; and b) in relation to the provision, the will must be read as if the will-maker's spouse or partner died immediately before the will-maker |
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Term
| Section 19(5) Wills Act 2007 |
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Definition
| 5) Subsection (4) does not apply if the will makes it clear that the will-maker intended; (a) the provision to be effective even if an order of the kind described in subsection (2) were made; and (b) in relation to the provision, the will not to be read as if the will-maker's spouse or partner died immediately before the will-maker. |
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Term
| Section 19 Wills Act 2007 Limits |
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Definition
| The old law applies, which says that the marriage is finally dissolved; any gift to the spouse made by any will is revoked, to wills made before 1 November 2007. |
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Term
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Definition
| In this case, the couple�s marriage was dissolved, the will-maker had made a will before the dissolution of the marriage who left the entirety of his estate to his former wife, he did not change his will after the dissolution. By the operation of the section, she could not take the gift, it was left on an intestacy and was administered according to s77 of the Administration Act. |
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Term
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Definition
| A woman made a will and a codicil in 1942, in 1950 she went to another solicitor and made a second will containing the usual revocation clause revoking all previous wills. Later on she made a codicil. Then in 1962 she went back to the original solicitor of the 1942 will, who knew nothing about the 1950 will, and made another codicil to the 1942 will � which had been revoked in 1950. She died in 1971. After she died the 1942 will could not be found, but the 1950 could and so could the codicil of 1962. In the CoA the point to be decided was the meaning of a phrase in the 1962 codicil which stated �this is a second codicil to the last will and testament of me which said will bears the date 3/02/1942.� Ambiguity arose where the codicil referred to the last will � which is 1950 will, but she is directly referring to the 1942 will. There was no external evidence that the court could call upon. The court said the mere reference to the date of the 1942 will was not enough to revive it, the court found that the woman intended to refer to the 1950 will. The result was that 1950 will was to stand. |
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Term
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Definition
| In each case, the question whether a gift is specific or demonstrative depends upon whether the will shows an intention that the legatee is to have the legacy in any event (in which case it is demonstrative) or an intention that he is to have the legacy only insofar as the designated fund is sufficient to provide |
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Term
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Definition
| 1) This section applies when; a. a will disposes in fractional parts of�i. all the will-maker's property; or ii. the will-maker's residuary estate; and b. a part fails. (2) The failed part goes� a. to the part that does not fail; or b. if there is more than 1 part that does not fail, to all those parts proportionately. (3) Subsection (2) does not apply if the will makes it clear that the will-maker intended a part that fails to be disposed of differently. |
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Term
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Definition
| In this case the Chief Justice said �the law certainly is not so absurd as to force a man to take an estate against his will� An informal disclaimer will suffice, but it is safer to produce a written disclaimer. Once you have accepted the gift you cannot disclaim it, but until you have accepted it you are able to disclaim. If you do disclaim the gift then the gift fails. |
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Term
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Definition
| the gift in this case is regarded not as a mere bestowal of the will-maker�s bounty, but to discharge an obligation. In this case the gift did not lapse but was paid to the personal representatives of the late intended beneficiary. This rule applies whether the obligation is legally binding or not. An example might be a debt, that is no longer technically owing due to statutory limitations. |
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Term
| Section 23, Wills Act 2007 |
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Definition
| if a will-maker�s children predecease him, then in many cases the issue of that child or those children take by substitution the gift their parent would have taken. |
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Term
| Section 24, Wills Act 2007 |
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Definition
| (1)���� This section applies when a will disposes of property to the will-maker's issue without limitation as to the remoteness of the issue. (2) The property is to be held in the same manner as section 78 of the Administration Act 1969 provides for the issue of an intestate. (3) Subsection (2) does not apply if the will makes it clear that the will-maker intended the property to be held in a different manner. """"S 24 does not apply to wills made before November 1 2007. """" |
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Term
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Definition
| A will maker made a will that left a house to a named person, some time before he died the will-maker sold it and he took a mortgage back for some of the purchase price. Now instead of a house, the will-maker had a right to a debt, he was owed money. After the will-maker�s death the person to whom the house had originally been left claimed the mortgage, he argued that the mortgage represented the house. The argument failed, it was held that the gift was totally adeemed, the subject matter was no longer owned by the will-maker. |
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Term
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Definition
| Here the nature of the gift had changes rather than disappeared, a gift was made by will by shares in a private water company. after the will was executed and before the death of the will-maker, the water company was taken over by a public water board and shares were issued by the board. It was held that this was different shares and that the gift was adeemed |
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Term
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Definition
| In this case a company was reconstituted and shares issued in a new company to replace the share holders� holdings in the old company and it was held that there was no ademption |
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Term
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Definition
| the bequest was �of such as my securities as shall be deposited with my solicitor for safe custody at the date of my death�. only the securities with the solicitor would be covered, so far as any securities that had been permanently removed ademption had occurred. |
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Term
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Definition
| However if an item had only been temporarily removed, such as a painting described as being in a certain house, but which had been taken away to be cleaned then there is no ademption |
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Term
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Definition
| in this case a man, G, killed three relatives; his wife, her daughter and her father. He was so badly mentally disordered that at the time of the trial he was found not fit to plead to a charge of murder. There was no factual question that he had killed the three victims, but because of his mental state, not only was he not convicted in relation to the deaths; he was never put on trial. The question then was whether in those circumstances he could take under the wills of the wife and the daughter he had killed. There was also the question of whether he could keep property which he had jointly owned with his wife and therefore was now sole owner of the joint tenancy. The judge first considered the question of whether the man was guilty of murder, he found that the man was not fit to plead in a criminal trial, but on the balance of probabilities he was sane at the time of the killings. It was beyond doubt that he had actually killed the victims and so the judge said that he was guilty of their murder. He was therefore not entitled to share in the estates. As to the joint property, the judge found that because the killer had killed his wife he could not keep that either. What happened to the property was held on a constructive trust for the wife�s estate. The case would have been different if the killer had been insane at the time of the killings because then no crime would have been committed. The Succession Homicide Act puts all of this into statute. |
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Term
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Definition
| the court said that the fundamental rule in construing the language of the will is to put on the words the meaning which, considering the terms of the will, the will maker intended. The question is not what the will-maker intended to do when he or she made the will, it is what is the expressed intentions of the will-maker as stated in the will. |
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Term
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Definition
| the Master of the rolls said that to adopt a construction which leads to intestacy in preference to another plausible construction which leads to a testacy is to deny the express wish of the will-maker. When a will-maker engages in a solemn process he does not intend to engage in a solemn fast. |
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Term
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Definition
| There a will maker left her stocks and shares to four named beneficiaries. She held stocks and shares in limited companies and in government concerns of various kinds. A court held that the ordinary meaning of stocks and shares referred to holdings in the privately owned companies, not in the government entities and there was nothing in the will to displace that meaning |
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Term
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Definition
| In this case a will-maker in a will she wrote up herself left �all the moneys� she had to her nieces and nephews. The question was whether, besides cash, it should also include investments of over �32,000. The HL decided that it should include everything, unless there were special circumstances then there was no reason to adopt a fixed legal meaning to the word money as opposed to its popular meaning. The court said that one must ascertain between the various meanings available as to which is correct by looking at the will in light of all the circumstances. |
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Term
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Definition
| In this case a woman made her will leaving a gift to �such descendants of my late mother and my later father as my trustees should think fit.� That obviously includes the will-maker herself, her brothers and sisters and all their offspring. However, by the time the will maker died, her parents were dead (so no question of more offspring), she herself had no children and all her brothers and sisters died without leaving any other children. The parents had not had any children outside of the marriage � there were, in fact, no descendants. This meant that the gift failed. Other more distant relatives, the will-maker�s aunts and uncles claimed the property. The court held that the natural, normal meaning of the words were clear and it could do nothing but apply them even if the result was not what the will-maker intended. |
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Term
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Definition
| George Helliwell left property to his nieces and nephews and the case involved the question of whether it included the question of whether it only included to children who had been born of parents who had been married. Mr H had an enormous number of children that were not born in wedlock, but the general understanding of the words �nieces and nephews� at the time only included children who were legitimate. However the will contained the words �and I declare that one named person � John Rushwood Feather � the son of my sister Mary Wright and another named person � William Henry Hay � son of my brother John Helliwell should be entitled to share equally with my other nieces and nephews. One of these people was the legitimate son of an illegitimate sister; the other was the illegitimate son of a legitimate brother. It was held that these people were entitled to take under the will along with those that came under the definition of nieces and nephews. |
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| A word which puzzled the court was the word �relations�. Lord Stamp held that the word meant next of kin or nearest blood relations. However, Lord Shash and McGore held that the word had the wider meaning of descendants from a common ancestor. In view of the uncertainty of the meaning of the term it is probably better not to use it, or to define what is meant by the word |
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| The expression �Godly person� was given a special meaning which was current amongst members of a religious sect belonged |
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| A residuary gift depended on the death or remarriage of the will-maker�s widow and �the death thereafter� of his three brothers and sister. In fact the sister had already died; the will was construed as to observe the will-maker�s general intention. |
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| There the list of specific words was only one word; the will-maker gave to her sisters her jewellery and personal effects. It was held that the words �personal effects� were to be read Ejusdem Generis with the word jewellery. It was a clause which gave particular gifts and other personal effects were dealt specifically with in the residue clause. |
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Term
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Definition
| where it was said: �where the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with such intentions such intentions may be discarded or modified. And on the other hand, if the will shows that the testator must have necessarily intended a interest to be given, which there are no words in the will to expressly devise, the court is to supply the defect by implication and thus to mould the language of the will-maker so as to carry into effect as far as possible the will-maker�s overall intention. It is a matter of reading the will as a whole. |
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Definition
| This rule was described as the rule of despair my Lord Greene. The rational is that the latter clause expresses the will-maker�s most recent expression of their intention. |
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Definition
| the judge stated that this rule �ought to be applied only where there is no reasonable interpretation that can be applied otherwise |
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Definition
| There a will left to a beneficiary, Mrs May mission, a sum of �one hundred pounds� and then after in brackets it was put �500 in figures. It was held that the beneficiary was entitled to �500 because it was the latter figure. |
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| There Mrs Gook gave the balance of her estate absolutely to her sister, this was a clear and absolute gift. But it then followed the words �and thereafter to her issue.� And that implied only a life interest to the sister. It was held that the sister took an absolute interest, the absolute gift was clear, but the suggestion of a life interest was not so clear, so the absolute gift prevailed |
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Term
| Section 31, Wills Act 2007 |
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Definition
| This section applies when the High Court is satisfied that a will does not carry out the will-maker's intentions because it--- (a) contains a clerical error; or (b) does not give effect to the will-maker's instructions. (2) The Court may make an order correcting the will to carry out the will-maker's intentions. """"This applies to all wills of persons who die on or after November 01 2007"""" |
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Definition
| In this case, two sisters called Remmington made identical wills, each leaving their property to the other. The only difference in the wills were their names. When they went to the solicitor�s office to execute the wills they signed the wrong ones � they signed each other�s wills. Apart from that the wills expressed their intentions, if their names could be swapped over then their intent could be achieved. The mistake was not discovered until one of the sisters died. The court merely deleted the names. |
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Definition
| This was a case where a de facto husband and wife each signed the other�s mutual will by mistake. By deleting the names and some word (hims and hers) the court could make it so that it achieved what was intended. |
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| When Mr K died it was discovered that he and his wife had signed each others will, Mrs K had died before Mr K, but her mistake had not been discovered because she had a small estate and there was no need for it to go to probate. But when Mr K died, and the lawyers went to get probate they discovered the mistake. The above two cases were applied in this case. |
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| there a woman by a codicil got a number of the clauses she wished to revoke in an earlier will wrong. The court said that the intentions of the will-maker was clear and it had jurisdiction to fix such errors |
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Definition
| there a slip by the solicitor�s typist had inserted �real� in the description of the property the effect, if allowed to stand, would have disposed of the real property but not the personal property of the deceased. In that case the lawyer did not check the typist�s typing and the will-maker merely glanced at the will. It was held that he did not have the required knowledge and approval of the content so the court was able to delete the word �real�. |
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Definition
| In this case a short and simple will provided for the gift of the residue of her personal estate but did not mention the real estate. The question was whether she died intestate in relation to her real estate. The court stated that it was clear from the context, including the word of the word devise, that real estate was included. The court said that if the court find that there is an obvious omission in the will and can determine by necessary implication what was omitted it may supply the words omitted in order to give effect to the interest of the will-maker. |
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Definition
| There a woman made a will in which she left provision for her residue to operate if her husband predeceased her or died within one month of her death, the will said nothing about what would happen if he survived for more than one month . It was held that it was an obvious omission and that the will-maker had obviously intended the spouse to have everything if he did survive the month |
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| In the Estate of Horrocks |
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Definition
| In this case a drafts person had written that a gift was to go to �charitable or benevolent causes� instead of �charitable and benevolent causes.� Under the law in England at the time that clause failed for uncertainty. Benevolent causes was uncertain and thus the whole clause failed. The court said that if the word �or� was changed to the word �and� the clause would have been okay. The English HC allowed this to happen, but CoA said that the court was unable to make this change. The will-maker�s intention as expressed in the will was that her money was to go to causes that were either charitable or benevolent not to causes which were both. To make the change would be altering the whole meaning of the will in the guise of making a correction. |
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Definition
| in this case a man had an 8million which he wished to distribute to poor relatives and charities. The will-maker drew up a list in which he made it clear who he wanted to benefit, which included the relatives and children. His solicitor, when he drew up the will, put in a clause that made it probable that the children of anyone named in the will could not take unless and until the parent who was named died. The will was drafted by the solicitor before he knew precisely who was to benefit. But at some point before the will was signed the will-maker in fact give the solicitor a list which made it clear that some children were to be entitled to a gift before their parents died, the solicitor failed to notice that this wish was incompatible with the clause he included. The will-maker was 92 and did not notice it either. The court said that the application of the section requires the examination of three things: 1. What was the will-maker�s intentions � this means hearing extrinsic evidence such as instructions to the drafter, the evidence of the drafter, the evidence of any previous wills and so on. 2. The second is whether the will is so expressed that it fails to carry out those intentions. In other words one must discern the intentions of the will-maker and then see if the words of the will express them. 3. Whether this failure was the result of clerical error � and the court had to consider whether this included where the drafter had not put their mind to what they had written. The court held that it could, so the proposed change that allowed the children to take before the death of their parents was allowed. |
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| There was also a drafting error by the solicitor. In redrafting a will, he identified the wrong fund to which the beneficiary was entitled. He spoke of a property fund, when he should have said trust fund � this meant that there was a large partial intestacy. The court admitted evidence from the attendant�s notes from the solicitor to help determine the will-maker�s true intention and altered the will accordingly. |
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Definition
| a woman had gone to one solicitor and made a will in 1966, and then she had made another will in 2002 which revoked the 1966 will. She then went to another firm where she made a codicil in 2005. The codicil did not make large changed, but it referred to the last will and then gave the date of the 1966 will. The question was whether the 2005 codicil revived the 1966 one, or whether it was meant to refer to the 2002 will. The court had to decide whether the will carried out the will-maker�s intentions, either because of the clerical error or because the instructions had not been carried out. The court decided that both applied. On the evidence the will maker had clearly intended the codicil to amend her 2002 will, the reference to the will of 1966 had been made only because the lawyer who drafted the codicil knew of the 1966 will and did not know that the 2002 will existed. The reference to the 1966 will also meant that the will-maker�s instructions were not carried out. |
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| ? In clause 2 of the will, Mr B�s partner was appointed and the clause said that a gift to him was to take effect provided that he survived her for more than 30 days. Unfortunately the words �I give the whole estate to him� was omitted by the typist � that meant that there was not gift at all. This was a clerical error and an order was made under s 31 |
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Definition
| In this case a drafting error had been meant that a clause appointing executors was void for uncertainty. It appointed any two partners of a particular firm to be the executors. She did not say which two she wanted to act and the firm had more than two partners. The court said that in order to be valid, it had to be possible to say which two partners are to be appointed because they are personally responsible for carrying out the will-maker�s wishes. The court changed the clause to state that the firm was appointed the executor, any two partners of which could act as executors. The whole firm would them be responsible for properly carrying out the administration of the will. |
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Term
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Definition
| Again, the will-makers had signed each other�s wills and s31 was used to correct it. |
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Term
| Section 32, Wills Act 2007 |
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Definition
| (1) This section applies when words used in a will make the will, or part of it,--- a) meaningless; (b) or ambiguous on its face; or (c) uncertain on its face; or (d) ambiguous in the light of the surrounding circumstances; or (e) uncertain in the light of the surrounding circumstances. (2) The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain. (3) External evidence includes evidence of the will-maker's testamentary intentions. (4) The Court may not use the will-maker's testamentary intentions as surrounding circumstances under subsection (1)(d) or (e). |
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| On a printed form the will-maker left �all my personal estate whatever� to her nieces and nephews. Most of her estate was realty. The court held that the legal technical term �personal estate� had to be given its legal meaning. That meant that her real estate went on an intestacy. The judge said that it was a case where a lay person had chosen to use a legal term and he acknowledged that the will-maker may well have thought the term �all my personal estate whatever� meant all her worldly goods � he did not know. In the absence of an indication to the contrary you could not change what she had said. The will maker did go to the trouble of making a will, she used the word in ignorance, and most of her estate went on intestacy. You could possibly argue that these circumstances are enough to show that the words are uncertain. |
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| The ambiguity arose when a farmer left his residuary estate to his son Foster Charles � the problem was that he son had died two years before the will was made. At the date of the will, the will maker had two sons � one called William Foster and the other simply Charles. At first probate was granted to William Foster, Charles challenged this and was allowed to introduce evidence to show that, in fact, he fitted the requirements of the will better � he lived at home and worked on the farm with his parents, where as William rarely saw them. William was never called Foster and so on. This extrinsic evidence of the circumstances of the time of the will was used to resolve the ambiguity. |
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| There a will-maker bequeathed �all the money held by the Public Trust at my death� to his granddaughter. Neither at the time he made the will nor when he died did the Public Trust hold any of his money � there was, however, some money in the Auckland savings bank. Evidence was admitted to show that the will maker was on her death bed when she made the will and was uncertain where her money was, allowing her granddaughter to take the money in the Auckland savings bank. |
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| The entire will consisted of three words; �all to mother.� Extrinsic evidence was admitted to show that the words �mother� was intended to mean the will-maker�s wife which he always referred to as �mother�. |
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Definition
| evidence of the will-maker�s intention was admitted where the gift was to Gorge Gord, the son of Gord. It was found that there were two men called Gord with sons named George. |
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Definition
| where the will maker gave part of the property to her nephew Arthur Murry, it transpired that she had two nephews of that name and extrinsic evidence was admitted to resolve that ambiguity. The evidence admitted turned out to show that the will-maker had intended to benefit a third nephew who was also called Arthur Murry, but was illegitimate. It was held that the illegitimate one took to the exclusion of the legitimate ones. If there had been only one legitimate nephew, and one illegitimate one, there would have been no ambiguity |
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Definition
| Mr T left the residue of his estate to his four grandchildren who he named. Mr T had four grandchildren, but only two of those he named were his grandchildren. Of the two that were not his grandchildren, one was the wife of his grandson and the other was a great grandchild. The court said there was uncertainty because of the circumstances that the names did not correspond. Extrinsic evidence was used to ascertain the will-maker�s intentions. And this was obtained from a legal clerk who took Mr T�s will instructions � it was apparent from the evidence that he had a problem remembering his grandchildren�s� names, and it was clear that he wanted to benefit his grandchildren and no one else |
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Definition
| in this case, Mr G left his wife � who was his second wife - moneys remaining �in my bank accounts�. He had five bank accounts, two of them were current accounts and three were term deposits. Two daughters of Mr G�s first marriage said that the money in the term deposit was not meant to go the wife, but rather to them as residuary beneficiaries. Some of the money in the term deposits had been inherited by Mr G from his sister, the daughter�s aunt and they thought it should go to them and not to the wife. In order to apply s 32, the court had to first consider whether the expression �my bank accounts� was ambiguous on its face, he held that while the term could cover term deposits, he accepted the submission that people might make a distinction between bank accounts and term deposit � therefore when Mr G used the term �my bank accounts� there was some ambiguity. Having found that external evidence could be used to interpret the words; that required some examination of the facts, including putting himself in the will-maker�s arm chair at the time he made the will to try and determine what he meant. In the end he decided that �my bank accounts� meant all of them � so the wife got a total of $128,000 at the expense of the two daughters. |
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Term
| Section 20, Wills Act 2007 |
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Definition
| Effect on will of will-maker dying. (1) A will's words disposing of property apply to circumstances as they are when the will-maker dies. (2) Subsection (1) does not apply if the will makes it clear that the will-maker intended the words to apply to circumstances as they are at a different time. |
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| in this case the gift of was of �my $1,000 North British railway shares.� At the date of the will, the will-maker owned $1,000 North British railway shares, but later he sold those shares and bought other shares in the company. It was held that the description, although slightly inaccurate, referred to specific property which he owned at the date of the will which was incapable of fluctuation. Since he no longer owned that specific property it failed for ademption |
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Definition
| there it was held that a bequest to Lord Sherburne, was a gift to the holder of the title at the time of the will and not a gift to the holder of the title at the date of the death |
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Definition
| A legacy to the Lord Mayor of London for the time being operated as a gift to the Lord Mayor of London at the will-maker�s death. |
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Term
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Definition
| this says that each share is to be paid out at the earliest possible time rather than the latest. The class of person is limited to persons in existence when the first share becomes payable. This is a rule of convenience. The rule can be excluded by an express contrary intent in the will. |
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| Chapman�s Settlement Trusts |
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Definition
| The English CoA held that a contrary intention was not shown by the words �now born, or shall be born hereafter�. |
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Term
| The Administration Act 1969 |
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Definition
| S77(b) ? de facto relationships of short duration, s77 does not apply unless there is a child of the relationship and the court is satisfied that if the partner does not take there would be serious injustice for the surviving partner""" S77(c) ? where there is a wife and one or more de facto partner then they take in equal shares. |
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