Re White (Deceased)

English Succession Law

Re White (Deceased)
Image: ‘Old Men of the Almshouse’ by Robert Lenkiewicz

Amendments to any existing will are subject to the terms of the Wills Act 1837, and so on this occasion, the revisionary wishes of the now deceased, fell victim to the powers of statute, when after coalescing with his closest friends, insufficient steps were taken to enforce the redrafted will, resulting in a loss of beneficial rights and the sting of natural law.

In 1981, the testator drafted a will that included apportioned bequests to an extended number of acquaintances, some of which stood to benefit from his generosity in substantial quantity. In 1984, and for one reason or another, the testator chose to amend the will so as to allow for partial intestacy, along with revised percentages of benefit for those closest to him.

Having executed the changes in the company of those elected to attest his actions, additional text was added at the foot of will in such a way that showed the will had been amended and attested by the two parties present, yet with the exception of a new signature by the testator himself.

Under powers of the Wills Act 1837, s.9 (as substituted by the Administration of Justice Act 1982 s.17) reads:

“No will shall be valid unless (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

While s.21 of the 1837 Act reads:

“[N]o obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.”

Or put simply by Buckley J in In re Hay:

“[I]it is quite plain that an alteration in a duly executed will made after the execution thereof is not effective unless the alteration is executed in the manner required by the statute for the execution of the will.”

Unfortunately for both the testator and the defendants, this resulted in the amended will no longer standing as valid on grounds that no new signature had been added by the testator during the amendment, and that the signatures of those witnessing were not considered as that attesting the new will, only the amended statements.

This had a secondary effect, inasmuch as at the point of litigation through a writ challenging the validity of the 1984 will, the claimant was now unable to receive any residual estate, while those who also stood to gain from the revised percentages would have been left unable to claim under the new will, as they were acting as both witnesses and beneficiaries, which is unlawful under s.15 of the Wills Act 1837.

Hobbs v Knight

English Succession Law

Hobbs v Knight
Image: ‘The Change of Heart’ by Jodie King

Revocation of a will or codicil requires deliberate and often irretrievable action on the part of the testator, however at a time when domestic statute evolved to establish greater certainty, there were still doubts as to exactly what constituted ‘actual’ revocation.

Having drafted a number of wills prior to his passing, the deceased had taken the steps to remove by cutting, his signature from an otherwise intact, and wholly acceptable will. Two later wills were partially executed, however there were no witnesses evidenced, therefore they too were deemed void.

As part of a challenge by the executor, it was argued that the terms of the recently amended Wills Act 1837, namely s.34 which reads:

“…[T]his Act shall not extend to any Will made before the First Day of January One Thousand eight hundred and thirty-eight…and that this Act shall not extend to any Estate per auto vie of any Person who shall die before the First Day of January One thousand eight hundred and eighty-eight.”

Were such as to allow for the intention of the deceased to enforce the validity of the will on grounds that his signature had remained part of the will after the 1 January 1838, and that the formalities now applicable under s.20 of the 1837 Act which reads:

“…[N]o Will or Codicil, or any Part thereof, shall be revoked otherwise than as aforesaid, or by another Will or Codicil executed in manner herein-before required…or by the burning, tearing or otherwise destroying by the Testator, or by some Person in his Presence and by his direction, with the Intention of revoking the same.”

Were peripheral to the actual ‘cutting’ of the will, as opposed to tearing, thus the will was not of itself destroyed nor obliterated, but merely absent of a signature.

Having considered the somewhat elaborate choice of words employed by the executors, it was found by the court that while the use of a blade to surgically remove a signature was dissimilar to the tearing of a will, it did by effect, remove the presence of the testator’s signature, thereby destroying any chance of meeting the terms of s.20 of the 1837 Act.

It was also explained that while s.34 of the Wills Act 1837 did not take effect anytime before the 1 January 1838, any action carried out after that date would by extension, remove previous exemption from its powers, therefore the altered will now fell subject to the requirements contained therein, and was duly held to be revoked.

Re Slater

English Succession Law

Slater v Slater
Image: ‘The Water Company’ by W.Hudson

The power of legislation to effect a disturbance in the bequeathment of company shares, provides the footing of a claim against ademption when a testator’s wishes fall victim to the dissolution of an established utility company.

Having taken the steps to leave a specific legacy to his sister in a will drafted little over year before his death, the testator expressed that:

“To Catherine Pontin Slater I bequeath the interest during her life arising from money invested in the following…Lambeth Waterworks Company.”

Unfortunately eleven months after his declaration had been formalised, Lambeth Waterworks Company was acquired by Metropolitan Water Board under the powers provided for in the Metropolis Water Act 1902, whereupon shareholders were issued Metropolitan stock to the same values as before.

At the point of death, the executors challenged under summons, the existence of the new shares on principle that despite their reassignment, the Lambeth Waterworks Company shares were equally visible, despite the change of form preceding the will’s completion. The first court disagreed, and referred to the principle of ademption under s.24 of the Wills Act 1837 which reads:

“…[E]very Will shall be construed, with reference to the Real Estate and Personal Estate comprised in it, to speak and take effect as if it had been executed immediately before the Death of the Testator, unless a contrary Intention shall appear by the Will.”

This translated that despite the previous reference to Lambeth Waterworks Company and the resulting transferral from Lambeth stock to Metropolitan stock, there could be no correlation between the two sources other than by the nature of their business.

Upon rejection of the claim, the executors appealed, whereupon the Court considered recent cases, that while supportive in their construction, offered little to uphold a challenge to the clarity provided for by the 1837 Act. It was for this simple reason that the Court dismissed the appeal and allowed for the shares to lapse into the residual estate.

Executors, Gifts and Trustees within English Succession Law

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Executors, Gifts and Trustees in Succession Law
Image: ‘Reading the Will’ by Frederick William Elwell

Executors, Gifts and Trustees in Succession Law