Proposition of property upon death Flashcards
(88 cards)
1
Q
wills act 1837 s9?
A
in writing, signed by testator, acknowledge signing before 2 witnesses. witnesses need to sign and acknowledge presence infront of testator
2
Q
when witnesses sign the will do they need to do it infant of each other?
A
No
3
Q
Origins of statue of frauds 1677?
A
the will becomes a public document.
4
Q
functions of s9 formalities?
A
ritual, channelling, evidentiary, protective
5
Q
ritual function
A
carrying out the execution of the will
6
Q
channelling function
A
should be clear where there is a will and where there is not
7
Q
evidentiary function
A
should produce evidence
8
Q
protective function
A
2 witnesses provides extra protection
9
Q
Can you execute a will without following the functions?
A
you can execute it without following the ritual
10
Q
what is a Secret trust?
A
allows testators to leave property secretly, they operate outside of the will
11
Q
Blackwell v blackwell
A
testator left 12k to beneficiaries, instructed them to pay to mistress and illegitimate son
12
Q
do secret trusts need to abide by s9?
A
No
13
Q
what is Fully secret trusts
A
No reference to the secret trust in the will
14
Q
Re gardner no 1 1920
A
may have fully secret trust on an intestacy
15
Q
three requirements for a valid fully secret trust?
A
intention, communication and acceptance.
16
Q
what case outlined the 3 requirements needed for fully secret trust?
A
ottoway v norman 1972
17
Q
what is intention
A
intention to create a trust: certainty of intention, subject matter and objects. kasperbauer v griffith 2000
18
Q
what is Communication
A
secret trusts must be communicated to the secret trustee. wall grave v ebbs 1855
19
Q
re boyes 1884
A
terms of trust in letter after death. it failed
20
Q
re keen 1937
A
may be by a sealed envelope given before death
21
Q
communication to one trustee: case?
A
re stead
22
Q
communication- tenants in common
A
if communication before or after death, only A will be bound, B will take absolutely
23
Q
communication- joint tenants. before execution
A
communication before execution- promise binds A and B
24
Q
communication- joint tenants- after execution
A
promise binds only A, B can take absolutely
25
what is Acceptance
secret trustees must accept the imposition of a trust. may be accepted either expressly or by acquiescence
26
what is burden of proof?
balance of probabilities
27
what did ottoway v norman 1972 say about the burden of proof
'clear evidence'
28
what did re snowden 1979 say about burden of proof
ordinary civil standard of proof (balance of probabilities)
29
what is a half secret trust?
will refers to the existence of a trust but no mention of its terms- re keen 1937
30
3 requirements of blackwell apply to half secret trust
intention, communication and acceptance
31
when does communication need to happen in a half secret trust?
before or at the execution of the will
32
failure of a secret trust- half secret trust
secret trustee holds property on resulting trust for the estate
33
failure of a secret trust- fully secret trust
beneficiary under the will takes absolutely
34
exception to the failure of a secret trust
sufficient evidence to show beneficiary under the wills holds on trust but FST fails for other reasons, then a resulting trust for the estate
35
s15 wills act 1837
beneficiary who attests the will looses any bequest under the will. however the attesting witnesses can tae as a secret beneficiary under a secret trust
36
what is the succession rule?
if a beneificiary under the will dies before the testator then the gift lapes
37
what type of trust is a secret trust?
constructive trust due to being imposed upon the conscience of the secret trustee
38
what would happen if it was an express secret trust?
it would need to comply wth formalities in relation to trusts of land
39
what is a mutual will?
couple execute wills in a similar terms leaving everything to the surviver and then identified beneficiaries
40
does it have to be spouses for mutual wills?
not always, can be sisters
41
what do they agree at the time of making mutual wills?
not to revoke the wills, equity binds the survivor to the promise.
42
case for mutual wills with sisters
charles v fraser 2010
43
rationale for mutual wills
equity uses constructive trust. survivor holds the property on trust in accordance with the mutual will
44
charles v fraser 2010
last will of survivor made changes to terms, went to probate. property went under the terms in the mutual wills
45
does a mutual will need to act in accordance in s9?
yes,
46
what happens if the survivor revokes the mutual will e.h. by remarrying or executing a new one
equity still imposes an equitable obligation. s18 wills act
47
does the trust imposed on the survivor operate inside or outside of the will
outside and limits testamentary freedom. re dale 1994- required to leave property under terms of mutual wills
48
what is the requirements of a mutual will?
made pursuant to an agreement to not revoke the mutual wills. a binding event occurs tying them to an agreement.
49
where is the agreement not to revoke?
usually found in the will ideally, agreement is contractual in nature.
50
what did re dale 1994 say in terms of consideration?
consideration for the contract is the death of the first testator leaving the mutual will unrevoked.
51
pursuant to an agreement- life interest case
re hagger 1930- joint will with life interest.
52
pursuant to an agreement- life interest
survivor gets life interest in the deceased estate
53
pursuant to an agreement- absolute interest case
re green 1951- absolute interest in the property. husband and wife left absolute interest as consideration for leaving it as they agreed.
54
pursuant to an agreement- no property left to eachother
re dale 1994- husband and wife left no property to each other. on each death entire estate to be divided equally between son and daughter wife changed will so daughter only £300 and son got everything else.
55
in re dale 1994 what was the outcome of the case
equity held her to the mutual will agreement
56
how to prove the existence of an agreement?
laid out in the will, look at other extrinsic evidence, mere fact that they are made simultaneously and on similar terms is insufficient
57
re oldham 1925
husband and wife left property together absolutely. wife remarried executes a new will giving new husband life interest, remainder to her relatives. greater difference between life interest than absolute (less likely there is an agreement to revoke)
58
what would happen if a solicitor was involved
evidence must be clear and satisfactory. re goodchild 1997- solicitors evidence used. stated would never advise a client to make a mutual will
59
do all terms need to be laid out?
the agreement is viewed as a contract of law. re walters 2008 state not all terms need to be laid out
60
s2 property (miscellaneous provisions) act 1989
generally not covered unless a joint will, one document containing all terms, both signed or separate documents you have exchanged.
61
re hobbled 2006-
wife was the survivor, husband executed a codeaseal before he died to revoke the mutual will. discovered afterr her had died. sufficient to revoke
62
can a will be revoked before the binding event?
no
63
does notice need to be given for revocation?
yeah. dulfour v pereira 1769
64
when is the binding event?
when the first testator dies leaving their will unrevoked
65
when does the constructive trust apply?
imposed at the time of the first testators death. Re walters
66
what property can be bound by the mutual will?
property indicated by the agreement
67
what property was indicated in the agreement in re green
specific instructions left to each other by husband and wife
68
property bound by the mutual will in re hanger 1930
bound both wife and husbands entire estates, property acquired later on is not covered, only property of both at the time of death of first testator
69
what is donation mortis causa
death bed gift, gift by cause of death
70
is a donatio mortis causa conditional on anything?
death of the donor and is revocable until they die
71
3 requirements of a donatio mortis causa
conditional on death, contemplation of the death and part with the domion
72
what case outlines the 3 requirements
re cravens estate no 1 1937
73
what happens when its conditional on death?
only effective on death.
74
what terms need to be used for conditional on death
not express terms- gardner v parker 1818
75
what happens if the donor recovers?
the donatio must be returned
76
what is made in contemplation of death?
cannot be vague, death must be expected in the near future.- re cravens no 1 1937
77
is contemplating death ok?
contemplating death as a possibility is enough, you do not need to literally be on your death bed.
78
wilkes v allington 1931-
suffering from cancer, refused treatment believed he was a doomed man.
79
what happens if they die of another cause
they do not need to die of the expected cause. wilkes v arlington 1931
80
is contemplation of death a subjective or objective test?
king v dubrey- an objective test, subjective test is too open
81
donor must part with dominion
requires intention to part with it and sufficient delivery of it. giving directions for something when you die is not enough
82
possession v dominion
have conditional ownership as absolute ownership would be a gift
83
vallee v birchwood- possession
more than basic possession. conditional ownership
84
how do you hand over possession?
handing over physical possession, remains access to the subject matter/evidence of title
85
what can be the subject matter??
land may be transferred by donatio mortis causa
86
land transfer case
duffield v elves 1827- not the land itself but the mortgage
87
can you hand over shares by donatio mortis causa
some confusion, still mixed authority on shares
88
re weston 1902
shares were invalid
