6. Revocation

This chapter considers the concept of revocation. Revocation is literally the action of ‘calling back’, in the sense of rescinding or annulling. It is a fundamental characteristic of wills that they are revocable wholly or partially at any time before a testator's death. The chapter also considers topics related to revocation: alterations, revival, and republication. A will may be revoked by four different methods: by marriage or civil partnership; by another will or codicil; by a duly executed writing; and by destruction. Revocation by marriage is governed by s. 18 of the Wills Act 1837. A testamentary gift to a spouse will fail if the marriage/civil partnership subsequently ends in divorce/dissolution or nullity, but strictly this is not a method of revocation.

5. Making a Will: Formalities

This chapter begins by discussing Section 9 of the Wills Act 1837, which continues to govern the execution of wills in English law. Section 9 provides that no will shall be valid unless: it is in writing, and signed by the testator, or by some other person in his presence and by his direction; it appears that the testator intended by his signature to give effect to the will; the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and each witness either attests and signs the will or acknowledges his signature. The remainder of the chapter covers the question of reform, incorporation, the solicitor's duty of care, and deposit and registration.

4. Making a Will: Capacity and Intention

This chapter discusses the capacity and intention required to make a valid will. To have capacity means that a person is legally competent to make a will. To be competent, the testator must have attained the required minimum age and must possess the necessary level of mental competence. A will is also invalid unless the testator had the intention to make it — he must have the animus testandi when he executes the will. More specifically, the requirement is that the testator must have intended that his wishes — as expressed in the appropriate form — should take effect on his death. It follows that these wishes must be entirely the result of his volition: the testator must know and approve of the contents of his will. Hence. animus testandi can be vitiated by factors such as fraud, mistake, undue influence, or failure to understand fully the dispositions in the will.

2. Intestacy

This chapter deals with the law of intestacy. The first section consists of an introduction to intestacy, dealing with the basic terms and rules, the incidence of intestacy, and the evolution and theoretical basis of the law. The second section gives a more detailed account of the current law. Considerable reference is made to relevant work of the Law Commission, most recently Intestacy and Family Provision Claims on Death (Law Com. No. 331, 2011), which was preceded by Consultation Paper 191 (2009) and sought to modernise the law of intestacy in light of contemporary social conditions. The Commission's suggestions were largely enacted in the Inheritance and Trustees' Powers Act 2014.

11. Administration

This chapter discusses the basic essentials of the law of administration. It addresses two central questions: Who administers the deceased's estate? What does administration entail? It is the deceased's personal representatives who administer the estate, either executors or administrators. Executors are the representatives appointed by the testator under his will (usually) to administer his estate. Administrators, on the other hand, are appointed by the court. This occurs where the deceased died intestate or, less frequently, where there was a will but no proving executor. The administration of the estate entails principally obtaining a grant of representation — a grant of probate in the case of a will, a grant of letters of administration in an intestacy — collecting and managing the assets of the estate, paying the debts and liabilities, and distributing the net estate according to the testator's will or the rules of intestacy.

10. Alternative Succession

This chapter is concerned with the various ways in which succession to property may occur on death, other than by intestacy or by a will executed under s. 9 of the Wills Act 1837. The subject matter can be divided for the purposes of exposition broadly into two categories: alternative wills, and alternative entitlement. Alternative wills include privileged wills and statutory wills. Alternative entitlement includes nominations, donatio mortis causa, constructive trusts, and proprietary estoppel. Many of the alternative succession mechanisms considered in the chapter are potentially difficult. Most of them are by definition exceptions to the formality requirements considered in Chapter 5. That said, most mechanisms of ‘alternative’ succession have a clear rationale and are appropriately contained.

9. Family Provision

This chapter addresses family provision. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain persons can apply for financial provision out of the deceased's estate on the grounds that the deceased's will or intestacy (or a combination of the two) does not make reasonable financial provision for the applicant. The persons entitled to apply are the deceased's surviving spouse or civil partner, former spouses or civil partners who have not remarried or entered a subsequent civil partnership, children, children of the family, dependants, and cohabitants. The remainder of the chapter covers the powers of court to make orders; the ‘matters’ which the court must take into account in applications for an order under the 1975 Act; and anti-avoidance provisions of the 1975 Act.

3. Wills: Nature, Characteristics, and Contents

This chapter provides an introduction to wills. A will or testament is the declaration in a prescribed manner of the intention of the person making it with regard to matters which he wishes to take effect upon or after his death. The general effect of a will is that the legal interest in the deceased's estate passes to his personal representatives, while the beneficiaries obtain a form of equitable right in it. The chapter discusses the long history of the will in English Law; contracts relating to wills; mutual wills; secret trusts, other constructive trusts, and proprietary estoppel; the content of wills; and the will as a social document.

8. Entitlement

This chapter first considers the various types of gift to which beneficiaries under a will may be entitled. The basic classification of testamentary gifts is into legacies and devises. Legacies are gifts of personality; devises comprise real estate. The second part of the chapter discusses the grounds on which there may be a failure of entitlement under the will. A gift may fail if it has been made subject to a condition, and the condition has not been satisfied. Conditions are classified for this purpose as either precedent or subsequent. A condition precedent (sometimes termed ‘suspensive’) is a condition which has to be satisfied in order for the beneficiary to take the gift. A condition subsequent, on the other hand, acts by way of defeasance: the beneficiary initially takes the gift, but loses it subsequently if he fails to satisfy the condition.

7. Construction of Wills

This chapter discusses the construction of wills. The law of construction is a mixture of general principles and specific rules, developed mainly by the courts, but with some help from Parliament. To some extent, the general principles of construction can be regarded as broad guidelines to the court rather than as strictly binding. Consequently, some judges will feel that they have room for the exercise of a degree of discretion in achieving the result they think is merited on the facts of the case. Moreover, there is no universal agreement as to what constitutes a principle or a rule in this context. The remainder of the chapter covers the specific rules of construction and extrinsic evidence.