FAMILY AND SUCCESSION LAW

IN ENGLAND AND WALES

FOURTH EDITION

REBECCA PROBERT
MAEBH HARDING

j (=) Wolters Kluwer

Law & Business
Family and Succession Law in
England and Wales
FOURTH EDITION

REBECCA PROBERT & MAEBH HARDING

Derived from the renowned multi-volume International Encyclopaedia of Laws, this

concise exposition and analysis of the essential elements of law with regard to family
relations, marital property, and succession
to estates in England and Wales covers
the legal rules and customs pertaining to the intertwined civic status of persons, the
family, and property.

After an informative general introduction, the book proceeds to an in-depth

discussion of the sources and instruments of family and succession law, the
authorities that adjudicate and administer the laws, and issues surrounding the
person as a legal entity and the legal disposition of property among family members.
Such matters as nationality, domicile, and residence; marriage, divorce, and
cohabitation; adoption and guardianship; succession and inter vivos arrangements;
and the acquisition and administration of estates are all treated to a degree of depth
that will prove useful in nearly any situation likely to arise in legal practice.

The book is primarily designed to assist lawyers who find themselves having to
apply rules of international private law or otherwise handling cases connected with
England and Wales. It will also be of great value to students and practitioners as a
quick guide and easy-to-use practical resource in the field, and especially to
academicians and researchers engaged in comparative studies by providing the
necessary, basic material of family and succession law.

ISBN 978-90-411-6007-2

9 {ll 160072
 Family and Succession Law in
England and Wales
Fourth Edition

Rebecca Probert
Maebh Harding

This book was originally published as a monograph in the International

Encyclopaedia of Laws/Family and Succession Law.

General Editors: Roger Blanpain, Frank Hendrickx

Volume Editor: Walter Pintens

ey. Wolters Kluwer

Law & Business
Published by:
Kluwer Law International “
PO Box 316
2400 AH Alphen aan den Rijn
The Netherlands
Website: www.kluwerlaw.com

Sold and distributed in North, Central and South America by:

Aspen Publishers, Inc.
7201 McKinney Circle
Frederick, MD 21704
United States of America
Email: customer.service @ aspenpublishers.com

Sold and distributed in all other countries by:

Turpin Distribution Services Ltd.
Stratton Business Park
Pegasus Drive, Biggleswade
Bedfordshire SG18 8TQ
United Kingdom
Email: kluwerlaw @turpin-distribution.com

DISCLAIMER: The material in this volume is in the nature of general comment only. It is not offered
as advice on any particular matter and should not be taken as such. The editor and the contributing
authors expressly disclaim all liability to any person with regard to anything done or omitted to be done,
and with respect to the consequences of anything done or omitted to be done wholly or partly in reliance
upon the whole or any part of the contents of this volume. No reader should act or refrain from acting
on the basis of any matter contained in this volume without first obtaining professional advice regarding
the particular facts and circumstances at issue. Any and all opinions expressed herein are those of the
particular author and are not necessarily those of the editor or publisher of this volume.

Printed on acid-free paper

ISBN 978-90-411-6007-2

This title is available on www.kluwerlawonline.com

© 2015, Kluwer Law International BV, The Netherlands

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise,
without written permission from the publisher.

Permission to use this content must be obtained from the copyright owner. Please apply to:
Permissions Department, Wolters Kluwer Legal, 76 Ninth Avenue, 7th Floor, New York, NY
10011-5201, USA. Email: permissions @kiuwerlaw.com

Printed and Bound by CPI Group (UK) Ltd, Croydon, CRO 4YY.
Table of Contents

The Authors

List of Abbreviations

General Introduction

§1. GENERAL BACKGROUND OF THE COUNTRY (DEMOGRAPHIC DATA)

I. Introduction
II. Demography

§2. HISTORICAL BACKGROUND OF FAMILY AND SUCCESSION LAW

I. Family Law
II. Succession Law

§3. SOURCES OF FAMILY AND SUCCESSION LAW

I. Constitution
II. Legislation
A. Family Law
B. Succession Law
Ill. Treaties
IV. Jurisprudence (Case Law)

§4. THE COURTS ADMINISTERING FAMILY AND SUCCESSION LAW

I. The Supreme Court
Il. The Court of Appeal
Ill. The High Court
IV. The County Court
V. The Single Family Court
VI. Is the Matter Appropriate for Judicial Resolution?

Part I. Persons

Chapter 1. The Status of a Person

§1. DEFINITION OF A PERSON
Table of Contents

§2. CAPACITY
I. Minors
A. Statute
B. Common Law

Chapter 2. Registration of Civil Status

§1. REGISTRATION
I. Births
Il. Gender
UI. Adoption and Parental Orders Register
IV. Marriages and Civil Partnerships
V. Deaths

§2. REGISTERS AND CERTIFICATES

Chapter 3. Personality Rights

§1. INTRODUCTION

§2. MINORS’ CONTRACTS

I. Valid Contracts
II. Contracts That Will Be Valid until Repudiated 50
Il. The Legal Effects of Minors’ Contracts

§3. MINORS’ RESPONSIBILITY FOR TORTS

$4. MINORS AND PROPERTY

$5. MINORS’ RESPONSIBILITY FOR CRIMES

Chapter 4. Names

§1. COMPOSITION OF NAMES

§2. SURNAME
I. Acquisition of Surname
Il. Change of Surname

§3. FORENAME

Chapter 5. Nationality
§1. INTRODUCTION 61

§2. ACQUISITION BY BIRTH 61

 Table of Contents

§3. ACQUISITION OF CITIZENSHIP DURING CHILDHOOD 62

§4. ACQUISITION OF CITIZENSHIP AS AN ADULT 62

Chapter 6. Domicile and Habitual Residence 64

§1. INTRODUCTION 64

§2. DOMICILE 64

§3. HABITUAL RESIDENCE 66

§4. DOMICILE OR HABITUAL RESIDENCE? 68

Chapter 7. Mental Incapacity 70

§1. BASIC PRINCIPLES 70

I. The Assumption of Capacity 70
Il. Determining When a Person Lacks Capacity 71
III. Making Decisions on Behalf of a Person Who Lacks Capacity a2
IV. Decisions That May Not Be Made on Behalf of a Person
Who Lacks Capacity a

Part I]. Family Law fm

Chapter 1. Marriage 75

§1. THE NATURE OF MARRIAGE 7D

§2. THE CAPACITY TO MARRY 76

I. Age 76
Il. Marital Status 76
If]. Consanguinity and Affinity 77

§3. FORMALITIES OF MARRIAGE 78

I. Preliminaries 73
A. Parental Consent 79
B. Publicizing the Intention to Marry 79
I. Celebration 80
A. The Place of Celebration 80
B. The Celebrant 81
C. The Content of the Ceremony 82
D. When Are a Couple Married? 82
Ill. Registration 82
IV. Presumption in Favour of Marriage 83
Table of Contents

§4. EFFECTS OF MARRIAGE 85

I. Common-Law Concepts 86
A. The Doctrine of Unity 86
B. The Concept of Consortium 86
Cc. Keeping Confidences 87
D. Contracts for Day-to-Day Living 88
B. Presumption of Advancement 88
II. Statutory Provisions: Express Rights and Responsibilities 88
Mutual Support 88
Occupation of the Matrimonial Home 89
Evidence 89
oO

Actions in Tort 89
Criminal Law 90
Taxation 90
Rights on Death 90
II. Statutory Provisions: Implied Rights and Responsibilities 9]
is Sexual Intercourse 9]
B. Living Together |
C. No Other Marriage 92
IV. Areas in Which Marriage Has No Effect 92
A. Name 92
B. Citizenship 92
<.. Ownership of Assets 92
V. Engaged Couples 93

§5. VOIDABLE, VOID AND NON-EXISTENT MARRIAGES 93

I. Voidable Marriages 94
Inability to Consummate 94
AMMO >

Wilful Refusal to Consummate 95

Lack of Consent 96
Mental Disorder 98
Venereal Disease 98
Pregnancy by Another 98
Gender Reassignment 99
Il. Bars to an Application Where a Marriage Is Voidable 100
II. Void Marriages 101
IV. Non-existent Marriages 101
V. Consequences of Void and Voidable Marriages 102

Chapter 2. Civil Partnership 104

§1. THE NATURE OF A CIVIL PARTNERSHIP 104

§2. THE CAPACITY TO ENTER INTO A CIVIL PARTNERSHIP 104

§3. FORMALITIES FOR ENTERING INTO A CIVIL PARTNERSHIP 105

 Table of Contents

§4. EFFECTS OF A CIVIL PARTNERSHIP 106

§5. VOID, VOIDABLE AND NON-EXISTENT CIVIL PARTNERSHIPS 107

Chapter 3. Terminating a Marriage or Civil Partnership 109

§1 INTRODUCTION 109

§2 FACTS JUSTIFYING A DIVORCE 109

I. Adultery 109
II. ‘Unreasonable Behaviour’ 110
Ill. Desertion 111
IV. Living Apart for Two Years Plus Respondent’s Consent 112
V. Living Apart for Five Years 112

. PROCEDURE FOR OBTAINING A DIVORCE 113

I. Jurisdiction 113
II. Bar on Applications in the First Year of Marriage 113
III. Undefended Divorces: The Special Procedure 114
IV. Defended Divorces 114
V. Decree Nisi and Decree Absolute 114

§4. JUDICIAL SEPARATION 116

§5. DISSOLUTION OF A CIVIL PARTNERSHIP 116

§6. LEGAL EFFECTS OF DIVORCE, DISSOLUTION, AND SEPARATION ORDERS 116

Chapter 4. Cohabitation without Marriage 118

§1. INTRODUCTION 118

§2. OPTIONS FOR PRIVATE ORDERING 118

§3. EXISTING RIGHTS 119

I. Equal Treatment 119
II. Lesser Rights 120
Ill. No Rights 22

§4. PROPOSALS FOR REFORM 123

Chapter 5. Establishing Parenthood and the Status

of the Child [25

§1. INTRODUCTION
Table of Contents

§2. WHO IS THE CHILD’S LEGAL PARENT? 125

I. Parenthood at Common Law 125
Il. Parenthood under the Human Fertilization and
Embryology Act 2008 126

$3. How MAY PARENTHOOD BE DETERMINED? 128

I. The Availability of Bodily Samples 129
Il. The Value of Other Evidence 131]

§4. THE STATUS OF THE CHILD 132

I. Child Born within Valid or Voidable Marriage [Zo
II. Child Born within Marriage Believed to Be Valid 133
III. Subsequent Marriage of Parents 133
IV. Adopted Children 133

Chapter 6. Parental Responsibility 134

§1. INTRODUCTION 134

§2. ACQUIRING PARENTAL RESPONSIBILITY 134

I. Registration 135
II. Private Ordering 135
A. Parental Responsibility Agreement 135
B. Appointment of a Guardian 136
C. Delegation 136
II. Court Orders 137
A. Orders Transferring Legal Parenthood 137
B. Appointment of a Guardian 138
C. Special Guardianship Orders 138
D. Parental Responsibility Order 138
E. Child Arrangement Orders 139
F. Care Orders 140
Emergency Protection Orders 140
os

§3. EXERCISING PARENTAL RESPONSIBILITY 141

I. The Content of Parental Responsibility 141
II. Limitations on Who May Exercise Particular Rights 142
III. Limitations on How Rights May Be Exercised 143
IV. Sharing Parental Responsibility 144

§4. ENDING PARENTAL RESPONSIBILITY 144

Chapter 7. Adoption and Its Alternatives 146

§1. INTRODUCTION 146

10
 Table of Contents

§2. ADOPTION 146

I. Who May Be Adopted? 146
Il. Who May Adopt? 146
Ill. The Necessity of Consent 148
A. Whose Consent Is Required? 148
B. When Can Consent Be Given? 149
C. When May Consent Be Dispensed With? 149
IV. Should an Adoption Order Be Made? 150
V. What Are the Legal Implications of Adoption? 151

§3. SPECIAL GUARDIANSHIP 132

I. Who May Be a Special Guardian? 153
Il. What Are the Legal Implications of an Order? 153
Il. When Will a Special Guardianship Order Be Made? 154

§4. CHILD ARRANGEMENTS ORDER 156

§5. FOSTER CARE 156

Chapter 8. Child Arrangements Orders 158

§1. INTRODUCTION 158

§2. THE COURT’S JURISDICTION TO MAKE AN ORDER 158

I. Family Proceedings 158
II. Persons Entitled to Apply for an Order 159
Ill. Seeking Leave to Apply 160
IV. Restrictions on Making an Order 161

§3. GENERAL PRINCIPLES GOVERNING THE MAKING OF CHILD

ARRANGEMENTS ORDERS 162
I. Orders as to Where and with Whom a Child Should Live 163
II. Order Relating to Contact with the Child 164

§4. APPLYING THE WELFARE PRINCIPLE 165

I. The Presumption of Parental Involvement 166
Il. No Unnecessary Delay 167
Il]. No Unnecessary Orders 167
IV. The Welfare Checklist 167
The Wishes and Feelings of the Child 168
The Child’s Needs 169
The Status Quo 169
AS

The Child’s Characteristics 169

Potential Harm 170
Capability of Potential Carers 170

§5. CONSEQUENCES OF A CHILD ARRANGEMENTS ORDER we |

I]
Table of Contents

§6. RESTRICTIONS ON REMOVAL OF CHILDREN FROM THE JURISDICTION 172

I. Restrictions on Removal 172
Il. The Form of Application to the Court 172
III. Factors Taken into Account in Deciding whether to Grant Leave 173

Chapter 9. Kinship and Affinity 177

Part III. Matrimonial Property Law 179

Chapter |. Rights and Obligations of Spouses 179

§1. GENERAL PRINCIPLES 179

§2. THE HOUSEHOLD EXPENSES 179

§3. MAINTENANCE DURING THE MARRIAGE 180

§4. THE MATRIMONIAL HOME 18]

I. Ownership 182
II. Occupation 185
III. Disposition 186
IV. Protection 187
A. Bankruptcy 187
B. Claims by Other Creditors 187

Chapter 2. Division of Assets on Divorce, Dissolution or

Annulment 189

§1. INTRODUCTION 189

§2. PRIVATE ARRANGEMENTS 196

I. Prenuptial Agreements 196
II. Post-nuptial Agreements 198
Il. Separation Agreements 198
IV. Consent Orders 199
V. Financial Dispute Resolution 199

§3. ADJUDICATION BY THE COURT 200

I. The Statutory Factors 200
Resources 200
oO lw >

Needs 202
Standard of Living 202
Om

Age of Parties and the Duration of the Marriage 203

Disability 203
Contributions 203
Conduct 204

12
 Table of Contents

H. Loss of Future Assets 204

Il. The Clean Break 205

§4. DIVORCE AND BANKRUPTCY 205

Part IV. Succession Law 207

Chapter 1. Intestate Succession 207

§1. THE OPENING OF THE SUCCESSION 207

I. Death 208
II. Missing Persons and Absentees 208

§2. ENTITLEMENT TO SUCCEED 208

I. Capacity to Succeed 208
Il. Commorientes 208
Ill. Unworthiness to Succeed 209

§3. THE SYSTEM OF DESCENT 210

I. The Classes of Beneficiaries 210
A. Surviving Spouse or Civil Partner 210
B. Descendants 212
C. Ascendants 213
D. Collaterals 214
II. Representation 214
Ill. Adoption 214

§4. BONA VACANTIA 214

Chapter 2. Testamentary Succession 216

§1. INTRODUCTION 216

§2. THE CAPACITY TO MAKE A WILL 216

I. Mental Capacity 217
Il. Undue Influence 219

§3. FORMALITIES FOR MAKING A WILL 220

I. Writing, Signatures, and Witnesses 221
II. Joint Wills 223
Ill. Alterations 229

§4. DIFFERENT TYPES OF WILL 224

I. Privileged Wills 224
II. Statutory Wills 225

13
Table of Contents

§5. REVOCATION OF A WILL 226

I. Destruction 226
II. Another Will or Codicil 228
III. Writing Declaring an Intention to Revoke 229
IV. Marriage 229

§6. REVIVAL OF A WILL 230

§7. RESTRICTIONS 232

I. Contracts to Make a Will 232
If. Mutual Wills 232

§8. INTERPRETATION OF A WILL 233

I. Knowledge and Approval of the Contents of the Will 233
Il. Rectification 234
III. Construction 235

§9. LOSING THE RIGHT TO BENEFIT UNDER A WILL 236

I. Witnesses 236
II. Divorce, Dissolution, or Annulment 236
Ill. Forfeiture 236
IV. Lapse 237

Chapter 3. Provision for Family and Dependants 238

§1. INTRODUCTION 238

§2. ELIGIBILITY TO APPLY 238

§3. POWERS OF THE COURT TO MAKE ORDERS 238

§4. THE BASIS FOR THE COURT’S AWARD 239

Chapter 4. Acts Inter Vivos Related to the Estate 241

§1. INTRODUCTION 241

§2. GIFTS 241

§3. TRUSTS 242

I. Fixed Trusts 243
II. Discretionary Trusts 243
Ill. Secret Trusts 243
IV. Purpose Trusts 244

84. DONATIO MORTIS CAUSA 245

14
 Table of Contents

§5. JOINT TENANCIES AND TENANCIES IN COMMON 246

§6. NOMINATIONS 248

§7. INSURANCE POLICIES 248

§8. PROPRIETARY ESTOPPEL 248

Chapter 5. Acquisition and Administration of the Estate 251

§1. DETERMINING WHO IS TO ADMINISTER THE ESTATE 251

§2. ACQUISITION OF THE ESTATE 251

§3. ADMINISTRATION OF THE ESTATE 252

Selected Bibliography 253

Index 259

15
 Family and Succession Law in
England and Wales
Fourth Edition

Rebecca Probert
Maebh Harding

This book was originally published as a monograph in the International

Encyclopaedia of Laws/Family and Succession Law.

General Editors: Roger Blanpain, Frank Hendrickx

Volume Editor: Walter Pintens

ey. Wolters Kluwer

Law & Business
Published by:
Kluwer Law International “
PO Box 316
2400 AH Alphen aan den Rijn
The Netherlands
Website: www.kluwerlaw.com

Sold and distributed in North, Central and South America by:

Aspen Publishers, Inc.
7201 McKinney Circle
Frederick, MD 21704
United States of America
Email: customer.service @ aspenpublishers.com

Sold and distributed in all other countries by:

Turpin Distribution Services Ltd.
Stratton Business Park
Pegasus Drive, Biggleswade
Bedfordshire SG18 8TQ
United Kingdom
Email: kluwerlaw @turpin-distribution.com

DISCLAIMER: The material in this volume is in the nature of general comment only. It is not offered
as advice on any particular matter and should not be taken as such. The editor and the contributing
authors expressly disclaim all liability to any person with regard to anything done or omitted to be done,
and with respect to the consequences of anything done or omitted to be done wholly or partly in reliance
upon the whole or any part of the contents of this volume. No reader should act or refrain from acting
on the basis of any matter contained in this volume without first obtaining professional advice regarding
the particular facts and circumstances at issue. Any and all opinions expressed herein are those of the
particular author and are not necessarily those of the editor or publisher of this volume.

Printed on acid-free paper

ISBN 978-90-411-6007-2

This title is available on www.kluwerlawonline.com

© 2015, Kluwer Law International BV, The Netherlands

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise,
without written permission from the publisher.

Permission to use this content must be obtained from the copyright owner. Please apply to:
Permissions Department, Wolters Kluwer Legal, 76 Ninth Avenue, 7th Floor, New York, NY
10011-5201, USA. Email: permissions @kiuwerlaw.com

Printed and Bound by CPI Group (UK) Ltd, Croydon, CRO 4YY.
Part IV, Ch. 2, Testamentary Succession 552-553

the survivor’s property will be held on a constructive trust for the beneficiaries
agreed with the first testator.'*°°
Since the doctrine of mutual wills imposes a restriction on freedom of testation,
it has been closely confined by the courts. There must be clear and satisfactory evi-
dence of an actual agreement between the parties that the surviving party will be
bound by the arrangement: the court will not infer such an agreement from the mere
fact that the wills are executed simultaneously and in identical terms.'*°° Some
cases have even suggested that there should be an actual contract,'*°’ which would
require an intention to create legal relations and consideration for the agreement, as
well as compliance with prescribed formalities if the contract concerned land.'** In
more recent cases, however, the courts have been content with indirect and piece-
meal evidence that there was an agreement between the parties.'*
It should also be noted that before the death of the first testator, either or both
parties may revoke their will(s); similarly, if it transpires that the first of the testa-
tors to die had altered his or her will before his or her death, the survivor will be
relieved from the obligation to dispose of the estate in the terms agreed.'*”°

§8. INTERPRETATION OF A WILL

552. Three situations are considered in this section: first, that the testator did not
know or approve of the contents of the will; second, that a mistake was made in
transcribing the intentions of the testator, thereby requiring rectification of the will;
and, third, that the testator’s intentions are unclear from the face of the will.

I. Knowledge and Approval of the Contents of the Will

553. It is necessary for the court to be satisfied that the testator knew and
approved of the contents of the will. Normally this will be assumed from the fact
that the will was executed by a capable testator. However, in two sets of circum-
stances additional proof will be required. First, if the testator is blind or illiterate the
person drawing up the will should not only read over the will to the testator but also
ask open-ended questions to establish that that the testator can hear and understand
what was going on.'*”! Second, certain circumstances — such as the fact that one of

1365. Re Hagger [1930] 2 Ch. 190; Re Green [1951] Ch. 148; Re Cleaver [1981] 2 All E.R. 1018; Re
Dale [1994] Ch. 31; Walters v. Olins [2008] EWCA Civ 782. On the powers of the beneficiary,
see Thomas and Agnes Carvel Foundation v. Carvel [2007] EWHC 1314 (Ch).
1366. Re Oldham [1925] Ch. 75; Gray v. Perpetual Trustee Co Ltd [1928] A.C. 391; Re Goodchild,
Deceased [1997] 1 W.L.R. 1216; Davies v. Revenue and Customs Commissioners [2009] UKFTT
138 (TC); Charles v. Fraser [2010] EWHC 2154 (Ch).
1367. Re Dale [1994] Ch. 31; Re Goodchild, deceased [1997] 1 W.L.R. 1216; Birch v. Curtis [2002]
EWHC 1158.
1368. Law Reform (Miscellaneous Provisions) Act 1989, s. 2, and see Healey v. Brown [2002] W.T.L.R.
849.
1369. Charles v. Fraser [2010] EWHC 2154 (Ch); Fry v. Densham-Smith [2010] EWCA Civ 1410.
1370. Re Hobley (1997) The Times, 16 Jun. 1997.
1371. Buckenham v. Dickinson [1997] 4 C.L. 220.
554-554 Part IV, Ch. 2, Testamentary Succession

the beneficiaries played a role in drafting the will — may require the person pro-
pounding the will to prove the testator’s knowledge and approval of its contents. '*”?
Moreover, the assumption that the testator knew and approved of the contents of
a duly executed will may be rebutted on the evidence. The person challenging the
will faces a difficult task: the courts have emphasized that ‘a court should be very
slow to find that a will does not represent the genuine wishes of the testatrix simply
because its terms are surprising, inconsistent with what she said during her lifetime,
unfair, or even vindictive or perverse’.'*”* Nonetheless, such factors will need to be
taken into account: the role of the court is to:

consider all the relevant evidence available and then, drawing such inferences
as it can from the totality of that material ... come to a conclusion whether or
not those propounding the will have discharged the burden of establishing that
the testatrix knew and approved the contents of the document which is put for-
ward as a valid testamentary disposition.'*”*

Applying this, the Court of Appeal held that the testatrix did not know and approve
of the terms of a will leaving her entire estate to the Royal Society for the Preven-
tion of Cruelty to Animals (RSPCA) — a charity of which she had spoken dispar-
agingly in the past — rather than to her only daughter, to whom she was very close.
The evidence was that the drafting of the will had been instigated by her domineer-
ing husband, who made a will in similar terms, and that the testatrix, who suffered
from severe agoraphobia and anxiety, would have been unlikely to have taken in the
terms of the will when she attended the solicitor’s office to sign it.
In rare cases the court may also find that there was only a partial knowledge and
approval of the contents of the will.'*”° In this case the particular clause of which
the testator did not know or approve can be notionally excised by the court.'*”°

Il. Rectification

554. There may be evidence to show that certain words or clauses in the will
were included by mistake and that the will therefore fails to carry out the testator’s
intentions. If the court is satisfied that the mistake was due either to a clerical
error,'°’’ or a failure on the part of the person drawing up the will to understand the
testator’s instructions,'*”* then the court has the power to rectify the will,'*”? and

1372. Wintle v. Nye [1959] | W.L.R. 284; Fuller v. Strum [2001] EWCA Civ 1879 (Ch); Hawes v. Bur-
gess [2013] EWCA Civ 94.
1373. Gill v. RSPCA [2010] EWCA Civ 1430, at para. 26.
1374. Ibid., para. 22, quoting the unreported case of Crerar v. Crerar.
1375. Paynter v. Hinch [2013] EWHC 13 (Ch).
1376. Marley v. Rawlings and another [2014] UKSC 2, para. 46.
1377. See, e.g., Re Williams [1985] 1 W.L.R. 905; Wordingham v. Royal Exchange Trust Co Ltd [1992]
Ch. 412; Re Segelman [1995] 3 All E.R. 676; Pengelly v. Pengelly [2007] EWHC 3227 (Ch).
1378. See, e.g., Sprackling v. Sprackling [2008] EWHC 2696 (Ch).
1379. Administration of Justice Act 1982, s. 20(1).

234
Part IV, Ch. 2, Testamentary Succession 555-555

may direct that words that were included by mistake be omitted and new words sub-
stituted. The scope for rectification has been enhanced by the recent decision of the
Supreme Court in Marley v. Rawlings,'**° in which it was held that a ‘clerical error’
was not confined to mistakes involved in copying or writing out a document but
could encompass those ‘arising out of office work of a relatively routine nature, such
as preparing, filing, sending [and], organising the execution of, a document.’'**' It
was accordingly decided that the fact that a husband and wife had each signed the
other’s will by mistake could be classified as a clerical error and could be rectified
by importing the intended clauses into the document that had been signed.

III. Construction

555. In the past, the courts have tended to assert that their role is to interpret the
language used by the testator in making his or her will, not to try to guess what his
or her intentions were.'**? However, in Marley v. Rawlings the Supreme Court sig-
naled that the same approach should be taken to the interpretation of a will as to
any other legal document. As Lord Neuberger stated:

the court is concerned to find the intention of the party or parties, and it does
this by identifying the meaning of the relevant words, (a) in the light of (i) the
natural and ordinary meaning of those words, (ii) the overall purpose of the
document, (iii) any other provisions of the document, (iv) the facts known or
assumed by the parties at the time that the document was executed, and (v)
common sense, but (b) ignoring subjective evidence of any party’s inten-
: 1383
tions.

In addition, under section 21 of the Administration of Justice Act 1982, if the terms
of the will are meaningless or ambiguous, extrinsic evidence is admissible to ascer-
tain what the testator’s intentions were.'*** The court may, e.g., hear evidence of the
testator’s use of language: if he or she ascribed a particular meaning to a disputed
word, then the court will follow.'**° Technical words used by a layman will gen-
erally be construed as bearing the meaning that they would have for a profes-
sional,'**° unless it is clear that a different meaning was intended.'**’ Direct
evidence of the testator’s intentions may also be admissible, for example ‘what he
told the drafter of the will, or another person, or by what was in any notes he made

1380. Marley v. Rawlings and another [2014] UKSC 2.

1381. Ibid., para. 75.
1382. Perrin v. Morgan [1943] A.C. 399; Re Jones (1997) 94(18) L.S.G. 31.
1383. Ibid., para. 19.
1384. Administration of Justice Act 1982, s.21; Re Williams [1985] 1 W.L.R. 905; Parkinson v. Fawdon
[2009] EWHC 1953 (Ch); Re Huntley (Deceased) [2014] EWHC 547 (Ch); Re Burnard
(Deceased) [2014] EWHC 340 (Ch).
1385. In Re Davidson [1949] Ch. 670.
1386. Re Cook [1948] Ch. 212.
1387. Re Bailey [1945] Ch. 191.

235
556-559 Part IV, Ch. 2, Testamentary Succession

or earlier drafts of the will which he may have approved or caused to be pre-
pared’ .'***

§9. LOSING THE RIGHT TO BENEFIT UNDER A WILL

556. In certain situations, beneficiaries may lose the right to benefit under the
will: where they have witnessed it, or have subsequently been divorced from the tes-
tator, or have killed the testator.

I. Witnesses

557. Neither witnesses nor the spouses or civil partners of witnesses are entitled
to benefit under a will.'**’ The fact that a beneficiary has witnessed a will does not
mean that the will is not valid, merely that the beneficiary is not entitled to benefit
under the will. If, however, the will would have been valid without the beneficiary
acting as a witness — 1.e., if there are at least two witnesses who do not stand to ben-
efit from the will — then the fact that the beneficiary has done so will be disre-
garded.'*?°

II. Divorce, Dissolution, or Annulment

558. The effect of a decree dissolving or annulling a marriage or civil partner-

ship is that any gift to the former spouse or civil partner will take effect as if that
person had died on the date of dissolution or annulment.'*?' A similar provision
applies to any appointment of the former spouse as an executor or trustee of the
will.'*°? Both rules may be excluded if the testator has expressed a contrary inten-
tion. There is also the possibility of the surviving party applying for financial pro-
vision from the other’s estate.'*”*

Ill. Forfeiture

559. The same rules apply to the forfeiture of an interest under a will as upon
intestacy, and have already been considered.'*”*

1388. Marley v. Rawlings and another [2014] UKSC 2, para. 26.

1389. Wills Act 1837, s. 15; Civil Partnership Act 2004, Sch. 4.
1390. Wills Act 1968, s. 1(1).
1391. Wills Act 1837, s. 18A(1)(b), as substituted by the Law Reform (Succession) Act 1995; Wills Act
1837, s. 18C(2)(b), as inserted by the Civil Partnership Act 2004.
1392. Wills Act 1837, s. 18A(1)(a), as substituted by the Law Reform (Succession) Act 1995; Wills Act
1837, s. L8C(2)(a), as inserted by the Civil Partnership Act 2004.
1393. See Part IV, Ch. 3, para. 563.
1394. See Part IV, Ch. 1, paras 485-487.

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