LEVEL 6 - UNIT 14 – LAW OF WILLS AND SUCCESSION SUGGESTED ANSWERS – JANUARY 2017 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2017 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points, which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 To assist the court in deciding whether a testator has testamentary capacity to make a will, a set of principles were laid out in Banks v Goodfellow (1870). These principles became known as the rule or test in Banks v Goodfellow. First, the testator must understand the nature of his act and its effects. Second, the testator must understand the extent of his property and, third, be able to understand and appreciate the claims to which he ought to give effect. Lastly, no disorder of the testator’s mind “shall poison his affections, pervert his sense of right, or his will in disposing of his property.” Although the testator must be able to recall the property he owns, there is no need to have a precise recollection, it only being necessary for the testator to have a broad understanding of the extent of his property, as illustrated in cases such as Wood v Smith (1993) and Schrader v Schrader (2013). Although the testator should understand the moral claims upon him, the testator may still “disinherit … the children, and leave property to strangers in order to gratify spite, or to charities to gratify pride”, as stated in Boughton v Knight (1873). This is now subject to statutory restraints placed upon the testator such as the Inheritance (Provision for Family and Dependants) Act 1975. Consequently, as stated in Fuller v Strum (2002), a will can still be upheld even though the testator was moved by capricious, frivolous, mean, or bad motives. The rule in Banks v Goodfellow is significant because the court holds that there is a standard of ‘morality’ to which most testators ascribe, and if the expected natural affection is displaced by an ‘insane delusion’, the testator is held to be of unsound mind. Page 1 of 13 The court has continued to apply the rule in Banks v Goodfellow to determine whether a person has testamentary capacity to make a will. The Mental Capacity Act 2005 (MCA 2005) deals with a person’s mental capacity to carry out acts, and since it came into force in 2007, there has been debate as to whether or not the statutory test contained in that Act has replaced the common law test in Banks v Goodfellow. In Scammell v Farmer (2008), the court followed the test in Banks v Goodfellow. However, in Key v Key (2010), where an elderly testator changed his will shortly after the death of his wife of 65 years, the court was unable to find any case law dealing with the effect of bereavement on testamentary capacity. Consequently, the court said that the test in Banks v Goodfellow must now be applied to accommodate this factor. The court therefore appeared to be extending the rule in Banks v Goodfellow. A similar point arose in Re Wilson (Deceased) (2013). More recently, in Walker v Badmin (2014) the court had to consider whether the test in Banks v Goodfellow had been superseded by the statutory test, or what their interaction should be. The court came to the view that the “correct and only test” for testamentary capacity is that in Banks v Goodfellow. In Simon v Biford (2014) the court came to the same conclusion. Consequently, notwithstanding the provisions of the MCA 2005, the rule in Banks v Goodfellow remains the only test for determining testamentary capacity. The rule in Parker v Felgate (1883) is concerned with the testator’s capacity at the time the will is executed. The rule applies where a testator lacks mental capacity at the execution of his will, but he is capable of understanding and does understand that his solicitor prepared the will according to his instructions, and given that he had mental capacity at that time. Of course, the will must contain the testator’s instructions. The rule in Parker v Felgate is useful in a situation where the testator’s capacity deteriorates after giving instructions. The rule was extended in In the Estate of Wallis (1952) to apply to a will drafted by a solicitor in accordance with a client’s written instructions. However, in Battan Singh v Amirchand (1948), the court warned that the rule in Parker v Felgate should be applied cautiously, especially where a testator was relying on a third party to convey his instructions to the solicitor More recently, the rule in Parker v Felgate was considered in Perrins v Holland Others (2010). The testator had given instructions in April 2000 and only executed the will in September 2001, by which time he lacked capacity. Nonetheless, the rule was approved and the preference of the court to uphold transactions was confirmed and the will was held to be valid. Consequently, although the rule in Parker v Felgate is still relevant, it is treated with caution where a third party has been involved in giving instructions on behalf of the testator to the solicitor. Question 2(a) A donatio mortis causa (dmc) is a gift which becomes absolute only on death and it remains revocable until death. It does not have to comply with the rules contained in s9 Wills Act 1837 (WA 1837). This is because a person who is close to death may not have the opportunity or time to have a formal will prepared and executed. Page 2 of 13 There are three requirements for a dmc to be valid. First, the donor must be contemplating his impending death. This means the donor should be contemplating death in the near future for a specific reason, such as an impending operation. Importantly, the donor must have good reason to anticipate death in the near future from an identified cause. The gift will lapse automatically if the donor does not die soon enough. In Wilkes v Allington (1931), although the donor knew that he was dying from cancer he died from pneumonia. The court decided the gift was still valid. Other examples include Re Cravens Estate (No 1) (1937), Birch v Treasury Solicitor (1951), Re Lillingston (1952) and Sen v Headley (1991) Second, the gift is conditional on the donor’s death. The requirement is that the gift must be made under circumstances, which show that the subject matter of the gift is to revert to the donor if he recovers. In cases where early death is inevitable, the law relaxes this requirement. If property is handed over during the last days of a donor’s illness, it is more likely to be treated as a dmc, as in Gardner v Parker (1818). Third, the donor must deliver “dominion” over the subject matter. Dominion can mean physical possession of the subject matter or some means of accessing the subject matter, such as a key to a box, or documents evidencing entitlement to possession of the subject matter. Examples include Woodard v Woodard (1995), and Vallee v Birchwood (2013). In King v Chiltern Dog Rescue and Redwings Horse Sanctuary (2015), the court considered the doctrine of dmc and stated that it is open to abuse and so strict proof of compliance with the three requirements is essential. The court emphasised that a dmc has distinct risks and can easily lead to fraudulent claims. It enables a donor to transfer property upon his death without complying with any of the rules in s9 WA 1837, thereby paving the way for all of the abuses which the statute was intended to prevent. In giving his Judgment, Jackson LJ expressed mystification over why the common law has adopted the doctrine of dmc at all. Although it served a useful purpose previously, it serves little useful purpose today, except possibly as a means of validating deathbed gifts. Although a will may have been prepared with the assistance of a solicitor and in the absence of the beneficiaries, there are no such safeguards during a deathbed conversation. The words in a will are plain to see, but there may be scope for disagreement about what the donor said to those visiting him in his final hours of life. Consequently, the court stressed that dmcs must be kept within their limitations. The court stated that Vallee v Birchwood was wrongly decided due to the length of time the between the donor making the gift of his house to his daughter, namely four months, until his death. It said that the donor had ample opportunity to take advice and make a will, and although the donor was elderly and appeared to be in poor health, he was not anticipating death from any known cause. Consequently, the court is promoting its preference for wills executed in accordance with the statutory rules rather than upholding dmc’s which bypass the safeguards provided by those rules. Page 3 of 13 Question 2(b) A document is not admissible to probate if it does not comply with the formal requirements of s9 WA 1837.