Making A Will
Making a willConsultation Paper 231
(Consultation Paper 231)Making a will
Crown Copyright 2017This publication is licensed under the terms of the Open Government Licence v3.0 exceptwhere otherwise stated.To view this licence, visit e/version/3 orwrite to the Information Policy Team, The National Archives, Kew, London TW9 4DU or emailpsi@nationalarchives.gsi.gov.uk.This publication is available at www.lawcom.gov.uk.
THE LAW COMMISSION – HOW WE CONSULTAbout the Law Commission: The Law Commission was set up by section 1 of the LawCommissions Act 1965 for the purpose of promoting the reform of the law. The LawCommissioners are: The Rt Hon Lord Justice Bean, Chairman, Professor Nicholas Hopkins,Stephen Lewis, Professor David Ormerod QC and Nicholas Paines QC. The Chief Executiveis Phillip Golding.Topic of this consultation: The law of wills. This consultation paper sets out options forreforming the law of wills and seeks consultees’ views on those options. The paper also asksconsultees a number of open questions related to the law of wills.Geographical scope: This consultation paper applies to the law of England and Wales.Availability of materials: The consultation paper is available on our website athttp://www.lawcom.gov.uk/project/wills/.Duration of the consultation: We invite responses from 13 July 2017 to 10 November 2017.Comments may be sent:By email topropertyandtrust@lawcommission.gsi.gov.ukORBy post toDamien Bruneau, Law Commission, 1st Floor, Tower, 52 Queen Anne’sGate, London, SW1H 9AG.Tel: 020 3334 3100 / Fax: 020 3334 0201If you send your comments by post, it would be helpful if, whenever possible, you could alsosend them electronically.After the consultation: In the light of the responses we receive, we will decide on our finalrecommendations and present them to Government.Consultation Principles: The Law Commission follows the Consultation Principles set out bythe Cabinet Office, which provide guidance on type and scale of consultation, duration, timing,accessibility and transparency. The Principles are available on the Cabinet Office website ultation-principles-guidance.Information provided to the Law CommissionWe may publish or disclose information you provide us in response to this consultation,including personal information. For example, we may publish an extract of your response inLaw Commission publications, or publish the response in its entirety. We may also be requiredto disclose the information, such as in accordance with the Freedom of Information Act 2000.If you want information that you provide to be treated as confidential please contact us first,but we cannot give an assurance that confidentiality can be maintained in all circumstances.An automatic disclaimer generated by your IT system will not be regarded as binding on theLaw Commission. The Law Commission will process your personal data in accordance withthe Data Protection Act 1998.i
ii
ContentsPAGEGLOSSARY AND ABBREVIATIONS1CHAPTER 1: INTRODUCTION5The Law Commission’s review of the law of wills5History of the project6What is a will?7Testamentary freedom and the intestacy rules8ContextProbate and estate administrationOther ways in which property may pass from the deceased to otherson deathChallenges to a will after the testator’s deathInternational law and the law of other jurisdictions99101010ReformScopeObjectives of reformBeyond law reform11111313Impact14Structure of this consultation paper15Acknowledgements and thanks17The team working on the project17CHAPTER 2: CAPACITY18Introduction18The effect of incapacity20Causes of incapacity21The current test of testamentary capacityLimb (1): nature and effectLimb (2): extent of the estateLimb (3): claimsLimb (4): disorder of the mind or delusionsBurden of proof222324242425Problems with the Banks v Goodfellow testThree or four limbs?Does not reflect modern understandings of capacity262628iii
The relationship between Banks v Goodfellow and the MentalCapacity Act 200528ReformAdoption of the Mental Capacity Act 2005 testPlacing Banks v Goodfellow on a statutory footingA statutory presumption of capacity32343537The rule in Parker v Felgate38Assessment of testamentary capacity: the golden ruleIn what circumstances should a testator’s capacity be assessed?Who should assess capacity?Guidance on how capacity should be assessed40424344Supplementary approachesA certificate of capacityAn accreditation scheme454547CHAPTER 3: STATUTORY WILLS49The current lawThe exercise of the court’s discretionProcedureThe UN Disability Convention49505153Problems in law and practiceCritique of the rationale for statutory wills and the operation of bestinterestsProcedural concerns54Reform57CHAPTER 4: SUPPORTED WILL-MAKING545660Introduction60Supported will-making and international lawThe UN Disability ConventionBanks v GoodfellowThe Mental Capacity Act 200560616262A scheme for supported will-making64Acting as a supporter65Appointing a supporter65Guidance on support68Safeguards69Providing for the scheme in law70iv
CHAPTER 5: FORMALITIES72Introduction72The purpose of formalities73The current law of formalitiesPresumption of due executionThe formalities required by section 9757576ReformThe need for a will to be in writingSignature of a will on behalf of the testator – a new restriction?Reforms relating to witnessesPrivileged willsA dispensing powerRegistration of willsCHAPTER 6: ELECTRONIC WILLS838485869294102105Introduction105Potential advantages of the use of technology in will-making106The current law107Enabling electronic willsUncertainty in the current law111113Electronic signatures: methods and challengesTyped names and digital images of handwritten signaturesPasswords and PINsBiometric signaturesDigital signaturesConclusions113115117119121124Storage of electronic wills124Video willsThe use of video evidence in relation to wills125128Electronic wills and a dispensing power129CHAPTER 7: PROTECTING VULNERABLE TESTATORS: KNOWLEDGEAND APPROVAL AND UNDUE INFLUENCE130Introduction130Knowledge and approvalThe meaning of knowledge and approvalTimingEvidence and presumptionThe two stage and one stage approaches to knowledge and approvalMistakes131131132132133136Undue influenceEquitable Undue InfluenceRelationships of influence136137138v
Calling for explanationThe presumption of undue influence139140Testamentary undue influenceThe approach to testamentary undue influenceRecent case lawUndue influence and fraudulent calumny140141142143The relationship between knowledge and approval, undue influence andcapacityKnowledge and approval and capacityKnowledge and approval and undue influence144144146ReformUndue influenceCostsThe effect of reformKnowledge and approval149149158160161CHAPTER 8: CHILDREN MAKING WILLS163Introduction163Does the current law cause inconvenience or injustice?164Comparison with other areas of lawContract and giftsThe age of 16 as a threshold for decision making166166167Is an absolute rule necessary?168CHAPTER 9: INTERPRETATION AND RECTIFICATION172Introduction173The current lawInterpretationRectificationRelationship between rectification and interpretation173173175176ReformThe order of interpretation and rectificationInterpretative provisions in the Wills Act 1837New interpretative provisionsWidening the doctrine of rectification177178180182184Interaction with a dispensing power185vi
CHAPTER 10: ADEMPTION186Introduction186Classification of gifts in a will186The law of ademption187The rationale for ademption188ReformThe respective position of attorneys and deputiesIncomplete transfers and options to purchaseGifts of sharesSimultaneous death and destruction of property190190194197198Are wider reforms required?Ademption by events beyond the control of the testatorAdemption where an interest in property is retained by the testator199199201CHAPTER 11: REVOCATION202Introduction202Another will or codicilExpress revocationImplied revocationProof of revocation203203203204Written intention to revoke204DestructionAct of destructionIntention to 9210211CHAPTER 12: MUTUAL WILLS216Introduction216The Current LawExecution of wills pursuant to an agreementAgreement that the survivor shall be bound by the arrangementThe death of the first partyThe effect of the mutual wills arrangementProperty subject to the trust216217217218218219Problems in the law220ReformAbolitionPlacing mutual wills on a statutory footing221221222vii
Changing the definition of net estate under the Inheritance (Provisionfor Family and Dependants) Act 1975CHAPTER 13: DONATIONES MORTIS CAUSA222226Introduction226The current lawContemplation of impending deathGift conditional on deathDelivery of dominionEffect of DMC228229230231232Problems with the lawShould DMC be abolished?234236CHAPTER 14: OTHER THINGS A WILL COULD DO238Introduction238Digital assets238Burial and cremation242Guardianship244CHAPTER 15: CONSULTATION QUESTIONS246APPENDIX 1: PROVISIONS AUTHORISING MINORS TO MAKE WILLS262Succession Act 1981 (Queensland)262Wills Act 1997 (Victoria)263Succesion act 2006 (New South Wales)264Wills Act 1936 (South Australia)265APPENDIX 2: WILLS ACT 1837 – SECTIONS 23 TO 31266APPENDIX 3: DRAFT WILLS ACT 1994 (VICTORIA)268viii
Glossary and abbreviations“Ademption”: where a gift in a will does not take effect at the testator’s death because thesubject matter no longer exists or has fundamentally changed; for example because it hasbeen given away or sold. In such circumstances, the gift is said to “adeem” and the beneficiarywill not receive anything from the estate in place of the gift.“Administration of an estate”: the process of the personal representatives dealing with theestate of a deceased person by collecting money, paying debts and distributing the estate tothose entitled under a will or the intestacy rules.“Administrator”: a person who is authorised by letters of administration (granted by the court)to administer a deceased’s estate where no executor has been appointment, either becausethere is no will, the will does not appoint an executor or the executors that are appointed areunwilling or unable to act.“Attorney”: a person appointed under a Power of Attorney, such as an Enduring Power ofAttorney or Lasting Power of Attorney, to deal with that person’s affairs.“Beneficiary”: a person who receives money or property under a will.“Beneficial interest”: where a person has a beneficial interest in, or is the beneficial ownerof, property he or she has the right to enjoy that property by using it or receiving any proceedsof sale. Such a person is also said to have equitable title to property, in contrast to legal title.Often, but not always, a person will be both the legal and beneficial owner of property.“Chattel”: a physical object, other than real property; such as a piece of furniture or jewellery.“Codicil”: a subsequent addition or amendment to a will.“Construction”: the act of interpreting a will.“Court of Protection”: the court which makes decisions in relation to issues concerning thehealth, welfare and financial affairs of a person who lacks the capacity to make such decisionshim or herself.“Deputy”: a person appointed by the Court of Protection to manage the welfare or propertyand affairs of a person who lacks the capacity to make such decisions on his or her own behalf.“Donor” and “donee”: a donor is a person who gives something while a donee is someonewho receives something. In this paper the donor may be giving property during his or herlifetime or making a donatio mortis causa (a special kind of gift given by a person in his or herlifetime, but that takes effect on death, discussed in Chapter 13). Alternatively, the donor maybe giving the donee a power of attorney (such as a lasting power of attorney, or, before thecoming into force of the Mental Capacity Act 2005, an enduring power of attorney).“Disposition”: the making of a gift in a will.1
“Enduring Powers of Attorney”: prior to the coming into force of the Mental Capacity Act2005, people could obtain an Enduring Power to Attorney to authorise a trusted person to actfor them if they could no longer manage their finances. See the Enduring Powers of AttorneyAct 1985 (now repealed).“Estate”: a person’s property, money and possessions.“Execution”: the term used to refer to making a will that is in compliance with the formalitiesrequirements in section 9 of the Wills Act 1837 so that the will is formally valid.“Executor”: a person appointed by a testator in their will to administer a person’s estatefollowing their death.“Family provision”: the statutory scheme under the Inheritance (Provision for Family andDependents) Act 1975 which gives the courts the jurisdiction to make provision from thedeceased’s estate for certain categories of claimant, where the deceased ought to have madereasonable financial provision for that person.“Formalities”: the formal requirements for a valid will set out in section 9 of the Wills Act1837, such as that the will must be in writing and signed by the testator.“Gift”: in this Consultation Paper, used to mean any benefit under a will.“Grant of representation”: a generic term for a grant of probate or grant of administration.“Grant of letters of administration”: the authority granted by a court to a person or numberof people to allow him, her or them to deal with a deceased’s estate where there is no will,where the will does not appoint an executor or where the executors that are appointed areunwilling or unable to act.“Grant of probate”: a legal document which authorises an executor (or executors) to managethe estate of a deceased in accordance with his or her will.“Intestacy”: where a person dies without having made a valid will. The deceased is said tohave died “intestate”.“Lasting Powers of Attorney” (LPA): a legal document under which a person (“an attorney”)can be appointed to make decisions on behalf of a person who is unable to make his or herown decisions regarding welfare, money or property. See section 9 of the Mental Capacity Act2005.“Legal interest”: where a person has a legal interest in property, or is the legal owner, he orshe has the right to deal with the property; for example to manage it, to sell it, or to make a giftof it. Such a person is also said to have legal title to property, in contrast to beneficial title.Often, but not always, a person will be both the legal and beneficial owner of property.“Minor”: a person who is under the age of 18.“Official solicitor”: the officer of the court who acts for a person who is unable to representhim or herself through a lack of capacity, where no other suitable person or agency is ableand willing to act.2
“Personal representative”: a generic term for either an executor or an administrator.“Probate”: the legal process under which a will is proved as a valid will.“Propound”: to advance a will as authentic. The propounder of a will claims that a particulardocument is the testators final will and that the provisions of that document should govern thedistribution of the testator’s estate.“Rectification”: the process of correcting a legal document, most commonly because of atypographical error.“Residuary estate”: part of the deceased’s estate that has not been specifically disposed ofin the will. The residuary estate includes any property which has been specifically disposed ofwhere that disposition has failed; for example, where the intended beneficiary haspredeceased the testator.“Revocation”: the formal act of withdrawing a valid will. A will is, by its very nature, revocableby the testator until his or her death.“Statutory will”: a will made by the Court of Protection on behalf of a person who lackscapacity.“Testamentary capacity”: where a person has capacity to make a will.“Testator”: a person who has made a will. Throughout this Consultation Paper, we use theterm “testator” to refer to both male and female testators, though traditionally (and in legaldocuments) a female testator is referred to as a “testatrix”.“Trust”: a trust is a means of separating legal from beneficial title; those who hold the legalinterest in the property are called trustees and they hold the property for the benefit of thosewho have beneficial title, called beneficiaries. A trustee may also be a beneficiary in somecases.“Will substitute”: an umbrella term sometimes used to describe legal means through whichproperty is passed on death other than by a will, including by nomination in a private pensionscheme and through payment of life assurance.“Will writer”: professionals involved in the drafting of wills, acting otherwise than as solicitorsor legal executives.3
4
Chapter 1: IntroductionTHE LAW COMMISSION’S REVIEW OF THE LAW OF WILLS1.1When we die our property passes to those we leave behind.1 For some people a willdetermines who receives the property: many thousands of people each year make willsor receive inheritances under wills. However, many people die without having made awill, that is, they die “intestate”. Estimates vary but it has been suggested that 40% ofthe adult population do not have a will.2 This project is concerned with the law relatingto wills.31.2The law in England and Wales that governs wills is, in large part, a product of the 19thcentury: the main statute is the Wills Act 1837, and the law that specifies when a personhas the capacity to make a will was set out in a case from 1870.4 The law of wills needsto be modernised to take account of the changes in society, technology and medicalunderstanding that have taken place since the Victorian era. The significant changesrelevant to a review of wills law include:(1)the ageing population;(2)the greater incidence of dementia;(3)the evolution of the medical understanding of disorders, diseases and conditionsthat could affect a person’s capacity to make a will;(4)the emergence of and increasing reliance upon digital technology;(5)changing patterns of family life, for example, more cohabiting couples and morepeople having second families; and(6)that more people now have sufficient property to make it important to control towhom it passes after their death.1If there is no-one who can benefit, and we make no provision in a will for what should happen with our property,then our property goes to the Crown (or, alternatively, to the Duchy of Cornwall or Duchy of Lancaster).2This was the Law Society’s view in its response to our 12th Programme public consultation, whichsuggested that we review the law of wills. Statistics support that estimate. There were 273,557 grants ofrepresentation for the 529,655 deaths registered in England and Wales in 2015. 40,409 were grants ofletters of administration (that is, there was no will). For the 256,098 deaths where there was no grant it is notpossible to know whether or not there was a will, but it is likely that most of these deaths were intestate.See Family Court Statistics Quarterly July to September 2016 and ONS webpage on Deaths ity/birthsdeathsandmarriages/deaths (last visited14 June 2017).3We considered the law that governs instances in which a person dies without having left a will in our 2011project, Intestacy and Family Provision: Claims on Death (2011) Law Com No 331. The project recommendedreforms to the law of intestacy that simplified how assets pass on death where a person dies without a will, andwhich clarified the law that applies where a person makes a claim under the Inheritance (Provision for Familyand Dependants) Act 1975. The reforms were enacted by the Inheritance and Trustees’ Powers Act 2014.4Banks v Goodfellow (1869-70) LR 5 QB 549 at 563.5
1.3Stakeholders agree that the law needs to be updated to improve clarity, bring it up todate and make it workable. In this consultation paper we set out the relevant law, explainwhat reforms we think could be made to
Jun 14, 2017 · Potential advantages of the use of technology in will-making 106 The current law 107 Enabling electronic wills 111 Uncertainty in the current law 113 Electronic signatures: methods and challenges 113 Typed names and digital images of handwritten signatures 115 Passwords and PINs 117 Biometric signatures 119
akuntansi musyarakah (sak no 106) Ayat tentang Musyarakah (Q.S. 39; 29) لًََّز ãَ åِاَ óِ îَخظَْ ó Þَْ ë Þٍجُزَِ ß ا äًَّ àَط لًَّجُرَ íَ åَ îظُِ Ûاَش
Collectively make tawbah to Allāh S so that you may acquire falāḥ [of this world and the Hereafter]. (24:31) The one who repents also becomes the beloved of Allāh S, Âَْ Èِﺑاﻮَّﺘﻟاَّﺐُّ ßُِ çﻪَّٰﻠﻟانَّاِ Verily, Allāh S loves those who are most repenting. (2:22
A Carpentry shop 1. Making T lap joint 3 3 2. Making Dovetail lap Joint 3 6 B Fitting shop 3. Making square joint 3 9 4. Making V joint 3 12 C Sheet metal shop 5. Making Tray 3 15 6. Making cylinder 3 18 D House-wiring 7. wiring for two lamps (bulbs) with independent switch controls with or without looping 3 21 8. wiring for stair case lamp 3 24
2.5 Brick making machine by Lewis Polak 12 2.6 Brick making machine by Donald P. Chennells 13 2.7 Small size bricks making machine 14 2.8 Medium size bricks making machine 15 2.9 Large size bricks making machine 16 3.1 Method of designing
Decision making is an intellectual process of selecting optimal and best option among many alternative choices. It results in an outcome which can be in form of action or an opinion [1]. Decision making process can be categorized into four processes:- Group decision making process Individual decision making process
Decision Making (PowerPoint) SESSION TITLE: COMMUNICATION AND CONFLICT RESOLUTION . . To introduce an approach to systematic decision‐making Explore connections between communication skills and decision‐making skills Learn and practice practical decision‐making
making, and decision- making, and three possible outcomes: a reaction, a response or guidance that leads us into a process of reflection. The four stages and three responses are shown diagrammatically in Figure 1, together with six modes of decision -making. Figure 1 The four stages of decision-making three
Snowden places decision-making models in two groups: categorization models and sense-making models.3 According to Snowden, in a categorization model, the framework precedes the data. In a sense-making model, the data precedes the framework. This distinction is useful for ethical decision making. Many accuse moral analytical systems of being too .
