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Andrew Iwobi, LLB, PhD
Senior Lecturer in Law
Swansea Law School

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Second edition first published in Great Britain 2001 by Cavendish
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© Iwobi, A 2001
First edition 1996
Second edition 2001

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British Library Cataloguing in Publication Data

Iwobi, Andrew
Essential succession – 2nd ed
1 Inheritance and succession – England 2 Inheritance and succession –
Wales
I Title
346.4'2'052

ISBN 1 85941 617 9

Printed and bound in Great Britain

Foreword

This book is part of the Cavendish Essential series. The books in the
series are designed to provide useful revision aids for the hard-pressed
student. They are not, of course, intended to be substitutes for more
detailed treatises. Other textbooks in the Cavendish portfolio must
supply these gaps.
Each book in the series follows a uniform format of a checklist of the
areas covered in each chapter, followed by expanded treatment of
‘Essential’ issues looking at examination topics in depth.
The team of authors bring a wealth of lecturing and examining
experience to the task in hand. Many of us can even recall what it was
like to face law examinations!

Professor Nicholas Bourne AM

General Editor, Essential Series
Conservative Member for Mid and West Wales
Spring 2001

v
Contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

1 Introduction to Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
The general nature of a will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

2 Formalities for a Valid Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

A brief history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Is the imposition of statutory formalities justified? . . . . . . . . . . .29
Reform of s 9 of the WA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
Incorporation of documents into duly executed wills . . . . . . . . .43
Privileged wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

3 Capacity and Intention to Make a Will . . . . . . . . . . . . . . . . . . . .53

Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
Intention to make a will (animus testandi) . . . . . . . . . . . . . . . . . . .64

4 Revocation, Alteration, Revival and Republication

of Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Alteration of wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95
Revival of wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
Republication of wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104

5 Classification of Gifts in a Will and Failure

of such Gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
Classes of gifts in a will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
Failure of gifts in a will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114

6 Intestate Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139
Issues surrounding the 1995 reforms . . . . . . . . . . . . . . . . . . . . . .140
Administration of the deceased’s property pending
distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
Distribution where there is total intestacy . . . . . . . . . . . . . . . . . .144
Distribution where there is partial intestacy . . . . . . . . . . . . . . . .157

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ESSENTIAL SUCCESSION

7 Provision for the Deceased’s Family and Dependants . . . . . . .163

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163
Time limit for applying under the IPFDA . . . . . . . . . . . . . . . . . .164
Jurisdiction under the IPFDA . . . . . . . . . . . . . . . . . . . . . . . . . . . .165
Persons who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165
Reasonable financial provision (rfp) . . . . . . . . . . . . . . . . . . . . . .178
Orders which the court may make . . . . . . . . . . . . . . . . . . . . . . . .189

8 The Administration of the Deceased’s Estate . . . . . . . . . . . . . .195

Executors and administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . .195
Acceptance and renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . .209
Revocation of grants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210
Payment of debts and liabilities . . . . . . . . . . . . . . . . . . . . . . . . . .214
Payment of debts and liabilities where the estate
is solvent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217
Payment of debts and liabilities where the estate
is insolvent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221
Distribution of the estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .223

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .233

viii
1 Introduction to Wills

You should be familiar with the following areas:

• the nature and essential elements of a will
• the contents of a typical will
• the effect of a conditional will
• the effect of contracts and promises to leave property by will
and the bearing of the doctrines of mutual wills and
proprietary estoppel on such contracts and promises
• alternative methods of disposing of property on death

The general nature of a will

Definitions
One of the fundamental features of the English law of succession is the
right of the individual to give directions regarding the administration
of his estate and disposition of his property when he dies. This right is
ordinarily exercised by making a will.
According to Sir JP Wilde in Lemage v Goodban (1865), ‘the will of a
man is the aggregate of his testamentary intentions so far as they are
manifested in writing duly executed according to statute’. This
definition has subsequently been adopted in other cases such as Re
Berger (1989) and Re Finnemore (1991).
Similar definitions can be found in various leading textbooks. One
definition, in particular, has been judicially endorsed in such cases as
Re Berger and Baird v Baird (1990). This is the definition in Jarman on
Wills, which states that ‘a will is an instrument by which a person
makes a disposition of his property to take effect after his decease and
which is in its own nature ambulatory and revocable during his
lifetime’.
To appreciate more fully the general nature and basic features of a
will, it is instructive to dwell briefly on various aspects of these two
definitions.

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ESSENTIAL SUCCESSION

(a) Testamentary intentions

A person’s ‘testamentary intentions’ (see Lemage v Goodban) refers
to his wishes and desires concerning the handling of his affairs in
the period after his death. A person who embodies such intentions
in a will is called a testator (or, if female, a testatrix). For the most
part, the testator’s intentions relate to ‘the disposition of his
property to take effect after his decease’ (see Jarman’s definition),
but may also encompass various dimensions of his personal affairs.
Although this is not explicitly stated in either definition, English
law prescribes that whatever intentions are expressed by the
testator must be the product of his free will and volition. Where this
is not the case (for example, because the testator is of unsound
mind or has been induced to make his will by fraudulent means,
coercion or the exercise of undue influence), this is liable to render
the will invalid.
(b) The requirement of writing and the contents of wills
Both the assertion in Lemage v Goodban that a testator’s intentions
must be manifested in writing and Jarman’s reference to a will as an
instrument, reflect the fact that, in English law, a will is not
ordinarily enforceable unless the testator’s intentions have been
expressed in a documentary form.
Two points are particularly noteworthy in connection with the
requirement of writing:
(i) The writing may be embodied in more than one document – The sum
total of the testator’s intentions is usually contained in a single
document but it is not uncommon for a testator to employ two
or more documents. For instance, after executing his will, a
testator sometimes finds it necessary to alter its contents in some
material respect and may, for this purpose, draw up a
supplementary document called a codicil. It must however be
stressed that in the strict legal sense a testator can only leave one
will. Consequently, as was pointed out in Douglas-Menzies v
Umphelby (1908), where a person’s testamentary wishes are set
out in two or more documents, ‘it is the aggregate or the net
result that constitutes his will’.
(ii) The law does not prescribe the contents of the will – As seen from
Jarman’s definition, the primary concern of a typical will is to
dictate the manner in which the testator’s property is to devolve
on his death. In addition, a testator may, if he wishes, use his
will as a medium for:

2
 INTRODUCTION TO WILLS

• giving expression to his views on a variety of matters

particularly the conduct of persons who would ordinarily be
expected to benefit from his will (for interesting examples of
this use of wills, see McConnell (1999) 149 NLJ 454);
• appointing executors and providing for their functions and
remuneration;
• appointing guardians for the testator’s infant children;
• arranging for the payment of taxes, death duties and debts
and the discharge of other obligations due from the testator;
• nominating beneficiaries under any testamentary power of
appointment exercisable by the testator;
• making provision for the testator’s funeral and other matters
relating to the disposal of his body.
Whatever directions a testator chooses to issue in his will, he is not
obliged to employ any particular technical form of words. As
Buckley LJ put it in Re Berger, ‘English law does not require a
document which is intended to have testamentary effect to assume
any particular form or to be couched in language technically
appropriate to its testamentary character’. A will may therefore
consist of a simple home-made document framed in familiar
everyday terms. Thus, for example, a will which simply read ‘All
for mother’ was recognised as valid in Thorn v Dickens (1906).
As a matter of prudence, however, many testators prefer to execute
wills prepared for them by solicitors who normally employ their
drafting skills to good effect in expressing the intentions of such
testators in appropriate legal terminology. The chief advantage a
testator derives from retaining a solicitor to draft his will is the
satisfaction that if there is some defect or deficiency in the process
of preparing or executing the will or in its contents, this may render
the solicitor liable on the grounds of professional negligence. On
the one hand, as seen from the case of Corbett v Bond Pearce (2000),
a solicitor may successfully be sued by a testator’s personal
representatives for any loss occasioned to his estate such as costs
incurred in responding to judicial challenges to the validity of the
will. Similarly, a prospective beneficiary who is deprived of his
entitlement under the will as a result of such a defect or deficiency,
may sue the offending solicitor (or other professional will writer),
as seen from the following cases:

3
ESSENTIAL SUCCESSION
Name of case
Ross v Caunters (1979)
White v Jones (1995)
Esterhuizen v Allied Dunbar (1998) Insurance company offered will-
Carr Glyn v Frearsons (1998)
Horsfall v Haywards (1999)
4
Details of negligent act/omission
Solicitor who prepared will failed
to ensure that will was not
witnessed by intended beneficiary,
thereby causing gift to that
beneficiary to lapse under s 15 of
the Wills Act (WA) 1837.
Solicitor retained to prepare will
delayed unduly in producing the
will. T died before it was ready for
execution, thus depriving T’s
daughters of their intended
benefits under this will.
writing service. Its employee who
was trained in will drafting (but
was not a solicitor) drafted T’s
will, but did not supervise
execution. Will witnessed by just
one person with the result that
those beneficiaries lost their
entitlement.
T (one of two joint beneficial joint
tenants of a house) instructed
solicitor to make will devising her
share of the house to B. Solicitor
failed to ensure joint tenancy was
severed in T’s lifetime, with result
that house devolved on other joint
tenant by right of survivorship
and B received nothing under T’s
will.
T indicated to solicitor that he
intended to devise house to his
wife for life with remainder to her
nieces. The will drafted by
solicitor left house to wife
absolutely, thereby depriving the
nieces of their benefit.
 INTRODUCTION TO WILLS

For a general idea of what a will drawn up by a solicitor would

look like, it is useful to look at the specimen wills contained in
various succession texts, for example, Borkowski (pp 57–58),
Mellows (pp 687–88) and Parry and Clark (pp 165–70). As these
specimens indicate, a well drafted will usually commences with a
declaration that ‘This is the last will of …’ (or words to the same
effect). However, even where an instrument is not declared to be a
will, it will be treated as one if:
• it was executed in the manner prescribed by the WA (see
below); and
• its maker intended it to take effect only after his death.
The position in this regard is illustrated by the following cases:
Name of case Material facts
Cook v Cock (1866) Duly executed document
declaring that, ‘I wish my sister to
have my bank book for her own
use’ upheld as valid will.
In the Goods of Morgan (1866) Deed executed in like manner as
will and expressed to take effect
on T’s death upheld as a valid
will.
Re Berger (1991) Testamentary wishes embodied in
Jewish ‘zava’ upheld as valid will.
Re Chapman (1999) Document entitled ‘Outline Will
Provisions’, but which appeared
to have been duly executed in the
manner required of a will was
held to constitute a will.

(c) The requirement of due execution

As well as emphasising the importance of writing in the will-
making process, Lemage v Goodban makes it clear that a document
can only take effect as a will if it has been ‘duly executed according
to statute’. As we shall see further in Chapter 2, this presupposes
that unless the testator is privileged, he must observe certain
formalities prescribed in s 9 of the WA.

5
ESSENTIAL SUCCESSION

(d) The ambulatory nature of wills

A basic characteristic of a will which is highlighted in Jarman’s
definition is that it is ambulatory in nature. As Critchley explains in
this connection in (1999) 115 LQR 631, p 636, this indicates that the
will ‘rather than being effective immediately upon execution
remains indefinite and ineffective … until the testator’s death at
which point it operates for the first the first time upon the
circumstances as at that date’. See, also, Countess of Berkeley v
Berkeley (1946); Re Batty (1952); Re Cairnes (1982); Re Berger and
Miller and Miller v Callender (1993).
The ambulatory nature of wills has several significant implications.
In particular:
• During the testator’s lifetime, the contents of the will are treated
as mere declarations of intention, rather than immutable
instructions. Accordingly, he is at liberty to dispose of his
property inter vivos, notwithstanding that it has already been
devised or bequeathed in his will.
• For his part, a beneficiary to whom property has been left in the
will cannot ordinarily restrain the testator from disposing of
such property. His expected interest does not take effect until
the testator’s death and is liable to lapse if he predeceases the
testator.
• Property belonging to the testator at his death is capable of
devolving under his will even though he had not yet acquired it
at the time the will was executed. For instance, if T makes a will
devising ’all my real property to B’ and T later buys some
freehold land, which he retains till his death, this land will
ordinarily form part of B’s inheritance under T’s will.
(e) The revocability of wills
Closely allied to the principle that a will speaks only from death is
the fact that it is, according to Jarman, revocable in the testator’s
lifetime. Revocation may be total or partial. The four methods of
revocation prescribed in the WA shall be dealt with in greater detail
in Chapter 3.
The power of revocation is so deeply entrenched that it has been
established in Vynior’s Case (1609) that it is not extinguished even
when the testator declares in his will that it is irrevocable.
Equally, where a testator contracts not to revoke his will, cases such
as Robinson v Ommanney (1882) establish that the other contracting
party cannot prevent such revocation either by specific performance

6
 INTRODUCTION TO WILLS

or injunction. However, as shall be seen in more detail in the next

section:
• where the contracting testator later revokes the will, he may be
liable in damages for breach of contract;
• where the contract not to revoke was made in the context of
mutual wills, the effect of revocation may be negatived by the
imposition of a constructive trust on the revoking testator.

The effect of contracts and promises pertaining to wills

It is not uncommon for a property owner to enter into a contractual
agreement or otherwise make a promise to the effect that on his death
his entire estate or an asset forming part of his estate shall pass under
his will to a particular beneficiary. Where such a testator or prospective
testator (T) fails to fulfil this agreement or promise, an issue arises
regarding the remedies available to the disappointed beneficiary (B).
(a) Contractual remedies
(1) Contracts to make wills
Where T enters into an agreement with B in which he
undertakes to make a will leaving property to B, there is a valid
contract provided the agreement:
• is under seal or supported by consideration;
• was intended to create legal relations: see Parker v Clarke
(1960), where the relevant intention was found to exist.
Contrast Taylor v Dickens (1997), where such an intention was
held to be absent;
• is in writing as stipulated by s 2 of the Law of Property
(Miscellaneous Provisions) Act 1989, where the property to
be left in the will is land: see Taylor v Dickens.
Where a contract of this nature arises, B may proceed against T
for breach of contract in a variety of situations, most notably:
(i) Where T fails to make a will at all: If B is aware of T’s failure, he
cannot compel T to make a will. However, on T’s death, B
will be entitled to claim damages out of T’s estate. Moreover,
if T contracted to bequeath or devise a specific asset to B, it
appears from cases like Re Edwards (1958) that B may be able
to compel T’s personal representatives to transfer the asset to
him.

7
ESSENTIAL SUCCESSION

(ii) Where T makes a will but omits to leave the property to B as agreed:
In such an event, B cannot compel T to revoke his will.
However, B will be able to claim against T’s estate and for
this purpose will be placed on the same footing as T’s other
creditors. Thus, in Hammersley v De Biel (1845), there was an
agreement between father and daughter that he would leave
a specified sum to her in his will if she married a particular
person. The marriage took place but the father’s will
contained no such bequest. Held, the father’s estate was
liable to pay this sum to the daughter.
(iii)Where T makes a will leaving the property to B but later proceeds
to revoke the will: Here, B cannot compel T not to revoke the
will but in the event of such revocation may be entitled to
recover damages from T’s estate.
(iv)Where T contracts to leave specific property to B in his will but
disposes of the property in his lifetime: If B has prior knowledge
of T’s plan to dispose of the property, B may be able to
prevent this by securing a declaration of right and an
injunction against T: see Schaeffer v Schuman (1972).
If B fails to intervene before T disposes of the property, he
may nevertheless obtain damages from T for breach of
contract, as happened in Synge v Synge (1894). Here, H
promised to devise particular property to W for life if she
consented to his marriage proposal. After they were married,
H proceeded to transfer the property to a third party. W
succeeded in her claim for damages against H. Significantly,
the court also acknowledged (albeit per obiter) that where
property is disposed of in these circumstances to a third
party recipient (other than a bona fide purchaser for value
without notice), the third party may be compelled to transfer
the property to the beneficiary who should have received it
under the will.
Note, however: the position is different where T contracts to
leave his entire estate (or a share thereof) to B. Under such a
contract:
• B’s entitlement relates to whatever is left at T’s death.
Accordingly, if T subsequently proceeds to make inter vivos
dispositions of any of his assets this will not constitute a
breach of contract. T is however obliged not to make
dispositions which though ostensibly inter vivos are deemed
to have a testamentary effect: see, for example, Jones v Martin
(1798) and Logan v Wienholt (1833);

8
 INTRODUCTION TO WILLS

• with regard to T’s assets which he did not dispose of in his

lifetime, the contract to leave his entire estate (or a share
thereof) to B, will not avail B against T’s creditors who will
be entitled to be paid the amounts due to them out of these
assets in priority to B: see Bennett v Houldsworth (1877).
(2) Contracts not to revoke wills
If T, having made a will, contracts with a beneficiary, B, not to
revoke it, the inherent revocability of wills means that B has no
legal means of compelling T to refrain from revoking the will.
However, it emerges from cases like Robinson v Ommanney that
a breach of contract will occur if T intentionally revokes the will
which renders T (or his estate) liable to pay damages for breach
of contract.
On the other hand, if the will is automatically revoked by T’s
subsequent marriage, it has been decided in Re Marsland that
this will not constitute a breach of T’s contract not to revoke the
will.
(b) Mutual wills and the imposition of constructive trusts
In one specific context, equity is prepared to intervene to
circumscribe a testator’s power to revoke his will. This is where
two (or more) testators have (i) come to an agreement that on the
death of each, his or her property shall devolve in a particular
manner, and (ii) have executed a joint will or individual wills
intended to give effect to the agreement.
Wills executed in such circumstances are known as mutual wills.
They are commonly framed in terms which are identical or
substantially the same, with each party leaving property in the first
instance to the other party and thereafter to the same ultimate
beneficiaries. Such wills may be executed by any two persons, but
are most often utilised by spouses to give effect to their desire as
parents that when they both die their property shall pass to the
children of their marriage.
The will(s) may provide:
• that property belonging to each spouse shall pass to the other
for life, remainder to their children (or other beneficiaries), as in
Gray v Perpetual Trustee Co Ltd (1928) and Re Hagger (1930);
• that property belonging to each spouse shall pass to the other
spouse absolutely with a substitutionary provision to the effect
that if the other spouse dies first, the property shall devolve on
their children, as in Re Cleaver (1981);

9
ESSENTIAL SUCCESSION

• that on the death of each spouse, his or her property will pass to
the children without any interest going in the first instance to
the other spouse, as in Re Dale (1993).
As long as both spouses adhere to their initial agreement and
neither attempts to revoke his or her will, their issue will become
entitled to the property of both on the survivor’s death. Where the
problem arises is if either spouse has a change of mind after the
execution of the wills and no longer wishes his or her property to
devolve in the agreed manner.
Where the other spouse is still alive
If, for instance, the wife (W) unilaterally decides during the lifetime
of her husband (H) that she no longer wants to go along with the
agreement, it is open to her to revoke her will, but she must notify
H. See Dufour v Pereira (1769) and Stone v Hoskins (1905). Neither H
nor their children as ultimate beneficiaries can prevent such
revocation, though H may claim damages for breach of contract.
It emerges from Stone v Hoskins that where either H or W
unilaterally revoke their respective wills, this relieves the other
spouse from liability under the agreement, thus enabling that
spouse to revoke his or her own will and make a new one. By the
same token, it has recently been held in Re Hobley (1997) that where
either spouse unilaterally alters their will in the other spouse’s
lifetime, the other spouse thereby becomes entitled to revoke their
will and make a new one.
Where the other spouse is dead
If W takes no steps in H’s lifetime to revoke her will and H for his
part dies without revoking his will, W may thereafter revoke her
will or it may automatically be revoked on her marriage (as
happened in Goodchild v Goodchild (1995), for instance). In such an
event, the children of the marriage, not being parties to the
agreement, will be unable to pursue a claim founded on contract.
Equity is, however, prepared to intervene on the premise that it
would be fraudulent for W to revoke her will, given that H, who
made his will pursuant to the agreement with W, can no longer
revoke his as he is dead. In this connection, rather than compel W
not to revoke her will, equity prefers instead to give effect to the
agreement in favour of the children of the marriage by imposing a
constructive trust on W’s personal representative. In other words,
as Kerridge has pointed out in Parry and Clark’s Succession text,
‘equity frustrates but does not prevent the unconscionable
revocation of a mutual will’.

10
 INTRODUCTION TO WILLS

The willingness of the courts to impose a constructive trust on the

surviving testator dates back to the decision of Lord Camden LC in
Dufour v Pereira. In a host of cases decided since then, the courts
have been called upon to resolve a variety of issues concerning the
nature and operation of this species of constructive trust
Issue 1: What is the effect of executing identical wills without an
accompanying agreement not to revoke? The fact that H and W (or any
other two parties) have executed their wills in identical terms does
not in itself signify that these are mutual wills under which the
survivor will be regarded as a constructive trustee. On the contrary,
the cases establish that in order for a constructive trust to be
imposed on the survivor, the wills must have been executed
pursuant to an agreement between the parties that neither of them
would revoke their wills and that they intended this agreement to
be binding. Thus, for instance, in Re Oldham (1925), H and W
executed wills in identical terms on the same day, each leaving their
estate to the other spouse with a substitutionary provision in
favour of the same persons if the other spouse died first. H died
before W, whereupon W made a new will in entirely different
terms. The court found no evidence that H and W had executed
their wills pursuant to the requisite agreement and held that these
were not mutual wills which would warrant the imposition of a
constructive trust on W. As Astbury J was at pains to point out in
this regard, ‘the fact that the two wills were made in identical terms
[did] not necessarily connote an agreement beyond that of so
making them’.
Issue 2: When does the constructive trust come into operation? There has
been some debate in academic and judicial circles as to whether the
constructive trust takes effect:
• at the time the mutual wills were executed;
• on the death of the first of the two testators to die;
• when the surviving testator accepted the benefits due to them
under the will of the first testator to die;
• on the death of the surviving testator.
It has ultimately been judicially established that the trust takes
effect when the first testator dies. In Re Hagger, for instance, H and
W executed a joint will pursuant to an agreement between them
that each would leave their property to the other for life, remainder
to the same beneficiaries (including E). W died first, E died next
and H died last. At H’s death, the court had to decide whether E

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ESSENTIAL SUCCESSION

had on W’s death become entitled to a share of the remainder or

whether her share was supposed to come into effect only upon H’s
death (in which case it would lapse, since E had died before H).
This in turn depended on whether a constructive trust had arisen
on the death of W or on the subsequent death of H. The court
concluded that the trust had arisen on W’s death and accordingly
held that E’s interest had become vested at that date and did not
lapse simply because E predeceased H.
The case of Re Green (1951) is also relevant in the present
connection. Here, H and W had executed mutual wills, which
provided that the surviving spouse was to inherit the estate of the
one to die first, and stipulated that the survivor would leave half of
their estate to mutually agreed beneficiaries. W died first; H
remarried and thereafter made a fresh will in different terms. If
there had been a simple agreement between H and W (not made in
the context of mutual will), to the effect that H would not revoke
his will, the principle in Re Marsland (see p 9 above) would have
meant that the automatic revocation caused by H’s remarriage
would not have rendered H or his estate liable for breach of
contract. The court, however, held that since H and W’s agreement
had given rise to mutual wills, a constructive trust came into being
as soon as W died which was not extinguished by H’s subsequent
remarriage. See, further, the Working Paper by Hughes on Mutual
Wills and Contracts not to revoke, published in the Journal of South
Pacific Law.
Issue 3: To what property does the constructive trust relate? Where H
and W execute mutual wills and one of them dies without having
revoked his or her will, difficulties may arise regarding the extent
of the property which the surviving spouse will be required to hold
on constructive trust for the ultimate beneficiaries. Assuming, for
instance, that H and W execute mutual wills and H dies first, the
courts may have to resolve whether the constructive trust imposed
on W as the surviving testatrix will extend to:
• whatever property (if any) she inherited under H’s will;
• that part of W’s estate which did not devolve upon her under
H’s will.
The basic premise on which the courts proceed, as Dixon J pointed
out in Birmingham v Renfrew (1937), is that the property to which the
constructive trust is affixed is dictated by the substance of the
agreement between H and W as manifested in the terms of the

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 INTRODUCTION TO WILLS

mutual wills. In Re Green (1951), for instance, the agreement

between H and W specified that the survivor was to divide half of
their estate among mutually agreed beneficiaries. H survived W
and the court held that the constructive trust, which arose here,
would extend to half of his estate.
In the Re Hagger-type mutual will under which each spouse confers
a life interest in his or her estate on the other with remainder to
mutually agreed beneficiaries, when the first spouse dies, the
position will be as follows:
• the constructive trust will not apply to the life interest conferred
under the will of the spouse who died first on the surviving
spouse who takes this life interest beneficially;
• moreover, there will be no constructive trust of the remainder
interest in the estate of the spouse to die first. Rather this interest
will normally be the subject of an express trust in favour of the
mutually agreed beneficiaries;
• it is only the estate of the surviving spouse that will be the
subject of the constructive trust.
Alternatively, under the terms of their mutual wills, H and W may
leave their respective estates absolutely to whichever spouse
survives, with a substitutionary provision in favour of mutually
agreed beneficiaries. It can be deduced from cases such as
Birmingham v Renfrew and Re Cleaver that a constructive trust will
be imposed on the combined estate comprising the survivor’s own
assets and those assets he or she inherited from the first spouse to
die. However, as Dixon J made clear in Birmingham, the
constructive trust as thus conceived is in essence a floating one,
suspended during the survivor’s lifetime and crystallising on his or
her death when it attaches to whatever remains of the combined
estate. Significantly, however, there is a distinct possibility that the
mutually agreed beneficiaries may ultimately be left with nothing
upon the crystallisation of the trust, for, as Dixon J pointed out, it is
open to ‘the survivor during his life to deal as absolute owner with
the property passing under the will of the party first dying … so
that, for instance, he may convert it and expend the proceeds as he
wishes’. This was re-affirmed by Nourse LJ in Re Cleaver. Nourse LJ
also signified that it is open to the survivor to make ‘ordinary gifts
of small value’ out of the combined estate, but the survivor may not
make large voluntary donations of the type intended to defeat the
agreement upon which the mutual wills were founded.

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ESSENTIAL SUCCESSION

Issue 4: Can the constructive trust arise where the survivor receives no
benefit from the estate of the testator who died first? In almost every case
in which the courts have had to deal with mutual wills, provision
has been made in the will of H and W for his or her estate or some
benefit therefrom to devolve on the other spouse if the latter is the
survivor. This was not the case, however in Re Dale. In this case, H
and W executed wills in 1988 under which they each left their
respective estates to their son and daughter equally with no
provision being made for the surviving spouse. H died later that
year. In 1990, W made another will leaving £300 to the daughter
and the rest of her estate to the son. The issue that arose when W
died was whether on H’s earlier death, W had become a
constructive trustee despite the fact that she had received no
benefit from H’s estate. If she had, her personal representatives
would be bound to give effect to the terms of her original mutual
will. Morrit J, having carefully reviewed most of the earlier
decisions, held that such a constructive trust had arisen in the
present circumstances irrespective of W not having benefited from
H’s will.
Conclusion
In view of the difficult issues surrounding the enforcement of
mutual wills, various commentators have vigorously argued
against their use by testators. Thus, for instance, Borkowski states
in his Law of Succession (p 50) that: ‘There are several pitfalls about
the operation of the mutual wills doctrine which render it generally
inadvisable for testators to make mutual wills.’ He goes on to point
out that there may be difficulties in determining the property
which is subject to the trust; the precise nature of the duties
imposed on the survivor under the constructive trust and the
extent to which the survivor can make inter vivos dispositions out
of the trust estate. Most tellingly, Borkowski alludes to the difficulty
which arises from the fact that under the mutual wills doctrine, ‘the
imposition of the constructive trust may prove a serious restriction
on the survivor, who may find the whole or a substantial part of his
property is shackled thereby’.
Concerns have also been voiced by Martin in Hanbury and
Martin’s Modern Equity, where she declares that ‘It is clear that the
imposition of a trust in cases of mutual wills is a clumsy and
inadequate way of dealing with a complicated problem ... [P]ersons
who wish to leave property by way of mutual wills should be
advised to consider most carefully the trusts on which they wish

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 INTRODUCTION TO WILLS

the property to be held; what property is to be included; the

position during the survivor’s lifetime [and] what administrative
powers the trustee should have ... Merely to draft mutual wills and
leave the law to sort out such a host of problems is no service to the
testator’.
(c) Proprietary estoppel
Where a person promises to leave property in his or her will to
another person in circumstances which do not give rise to a legally
binding agreement between them, the promisee will not be entitled
to pursue any contractual remedies against the promisor or his
personal representatives if the promise is not fulfilled. The doctrine
of proprietary estoppel may, however, afford a basis for giving effect
to such a promise.
The operation of this doctrine is evident in a wide range of
situations. The key attributes of such situations are that:
• one party (A) by his words or conduct;
• represents to another party (B) that B already has or is going to
be given;
• a right or interest in A’s property;
• thereby encouraging B to act to his detriment on the strength of
this representation.
Where the doctrine applies, A will be prevented (or estopped) from
asserting his strict legal rights to the property to the prejudice of B
and the court will make whatever order it considers appropriate to
safeguard B’s expectation that he has or will be given a right or
interest in the property.
The doctrine was successfully invoked, for instance, in Re Basham
(1987), where a stepfather (A) had repeatedly told his stepdaughter
(B) over a long period that he would leave his cottage to her when
he died and created the impression that his entire estate would pass
to her on his death. B for her part helped A manage his businesses
for many years without being paid, cared devotedly for A during
this period and expended her own money on repairs to the cottage.
A eventually died intestate and a dispute arose between B and his
next of kin as to who was entitled to his estate. The court found that
B had a reasonable belief that she would inherit A’s estate, that this
belief had been encouraged by A and that this had induced B to act
to her detriment. A’s personal representatives were therefore
estopped from denying B’s entitlement and were accordingly
ordered to transfer the estate to B in preference to A’s next of kin.

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ESSENTIAL SUCCESSION

There was a similar outcome in Wayling v Jones (1995). In this case,

A and B were homosexual partners who had lived together for 16
years. For several years before A died, he had repeatedly promised
that on his death, a hotel that he owned would pass to B, and in due
course A made a will to this effect. For his part, B assisted A in his
hotel business and as A’s chauffeur and companion. B was not paid
for these services, although A gave him pocket money and was
responsible for his maintenance. A later sold the hotel and bought
another property with the proceeds, but failed to alter his will to
reflect this fact. After A’s death, B sought to claim the new property
from A’s personal representatives relying on proprietary estoppel.
B’s claim was dismissed by the trial court, which held that there
was no evidence that B had relied to his detriment on A’s promise
to leave property to him. On appeal, however, the Court of Appeal
found a link between A’s promise and B’s willingness to serve A for
so long in return for minimal remuneration, which in the court’s
view, amounted to sufficient detrimental reliance on B’s part. A’s
personal representatives were therefore estopped from denying B’s
entitlement to the property and were ordered by the court to
transfer it to B.
A claim founded on promissory estoppel was, however, rejected in
Taylor v Dickens, where A, an elderly widow had retained the
services of B as a part time gardener and general handyman. After
B had been working for A for 14 years, she informed him that she
would leave her house to him in her will. B was suitably gratified
and signified that he would no longer charge A for any work he did
for her. Thereafter, B began to perform many more tasks for A than
an ordinary gardener and served her faithfully until she died seven
years later. A in due course executed a will in which she left her
residuary estate (including the house) to B. A few months before
she died, A altered her will leaving the residue of her estate to C,
without informing B of this fact. B brought the present action,
claiming that he was entitled to the residue of A’s estate, relying
inter alia on the doctrine of proprietary estoppel. Judge Weekes,
who heard the case, rejected B’s plea of estoppel on two main
grounds:
(i) While there was no doubt that A had promised to leave her
residuary estate to B, and although it might be unfair for her to
go back on this promise, the doctrine of estoppel did not confer
on the court a general equitable jurisdiction to hold a person to
their promise to do something in future just because it would be
unfair, unconscionable or morally objectionable not to carry out
the promise.
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 INTRODUCTION TO WILLS

(ii) Whereas in both Re Basham and Wayling v Jones, A had promised

to leave property to B but omitted to make a will giving effect to
this promise, in the present case, A having promised to leave
property to B, duly made a will to this effect. Accordingly, in
order for estoppel to avail B, he had to prove not only that A had
promised to make a will in his favour, but also that A had
created or encouraged a belief on B’s part that, having made the
will, she would not change her mind and revoke it. B was well
aware that wills were revocable and that A could change her
mind and there was no credible evidence that A had ever
encouraged B to believe that she would never change her will or
to act on this belief. There was therefore no basis to sustain B’s
claim, founded as it was on proprietary estoppel. (Note,
however, the criticisms advanced against this aspect of the
Taylor judgment by academic commentators such as Douglas
[1998] FLR 191–93 and Thompson [1998] 210 Conv 210, as well
as by Carnwarth J and Walker LJ in the subsequent case of Gillett
v Holt (1998 Ch D; 2000 CA.)
In the Gillett case, A, a prosperous farmer had struck up a
friendship with B when B was a schoolboy. B started working on
A’s farm in 1956 and A came to regard him as a member of his
family. In 1964, at a harvest dinner, A announced that he
intended on his death to leave his farming business to B. A
subsequently re-affirmed this intention several times, especially
during family occasions. In the meantime, B, with A’s
encouragement, began to assume increasing responsibility for
running the farm while receiving a lower salary than he would
ordinarily have been earning for the type of work he was doing.
In 1986, A carried his promise into effect by making a will in
which he left the bulk of his estate to B and confirmed it in a
1991 codicil. In 1992, however, A became very friendly with C,
which caused a rift between A and B. In 1994, A executed a fresh
will in which C replaced B as the principal beneficiary and
which in its final form left nothing to B. This led to a further
deterioration in the relationship between A and B which
culminated in B’s dismissal from his position as A’s farm
manager. In the ensuing action, B claimed that A’s repeated
assurances had induced him to devote his entire working life to
A’s service, and so A was estopped from bequeathing his estate
in a manner which would deprive B of his promised
entitlement. In his judgment, Carnwarth J:

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ESSENTIAL SUCCESSION

(i) found from reviewing the evidence that A had undoubtedly

intended to leave the bulk of his estate to B, had made this
intention known to B on several occasions and had reflected
this intention in his earlier wills;
(ii) insisted, however, that for a claim founded on proprietary
estoppel to succeed, B had to show that A’s assurances to
him went beyond mere statements of intention and
constituted an irrevocable promise that B would still inherit
irrespective of any change in circumstances;
(iii) was unable to discern from A’s words/conduct anything which
could reasonably be construed or which B did in fact
construe as such an irrevocable promise. This being the case,
B’s plea of proprietary estoppel could not be upheld;
(iv)went further to hold that B’s claim would also have failed,
since he had not established that he had suffered sufficient
detriment in reliance on A’s assurances to sustain his plea of
estoppel.
However, this decision of Carnwarth J was reversed on appeal.
Walker LJ, who delivered the lead judgment in the Court of
Appeal, observed that A’s assurances to B had been repeated
over a long period, usually on important family occasions, and
several of these assurances were completely unambiguous. He
disputed Carnwarth J’s central premise that these assurances
were incapable of sustaining B’s plea of proprietary estoppel. In
particular, Walker LJ felt that Carnwarth J had misdirected
himself when he concluded that A’s assurances disclosed no
irrevocable promise that B would inherit regardless of any
changes in circumstances. As Walker LJ explained, even though
A did not expressly affirm that his assurances were irrevocable,
if it could be shown that B had relied on these assurances to his
detriment, this would render A’s promise irrevocable.
Walker LJ also differed from the conclusion of Carnwarth J on
the issue of whether B had suffered sufficient detriment in
reliance on A’s assurance. Apart from the comparatively low
level of remuneration accepted by B, the evidence disclosed that
in reliance on A’s assurances, B had:

18
 INTRODUCTION TO WILLS

• not sought or accepted offers of employment elsewhere;

• carried out tasks and devoted himself to the farming
business beyond the normal scope of an employee;
• taken no substantial steps to secure his future through larger
pension contributions or otherwise;
• incurred substantial personal expenses in repairing and
maintaining farm property.
On the basis of this evidence, Walker LJ concluded that B’s case
on detriment was an unusually compelling one and that
detriment had been amply demonstrated. He therefore allowed
B’s appeal and ordered A to transfer one of the houses on the
farm, some farmland and the sum of £100,000 to B.
This decision has been warmly endorsed by Thomson in [2001]
Conv 78. After exhaustively commenting on the Court of Appeal’s
judgment, Thompson concludes that ‘it shows the flexibility of the
doctrine of equitable estoppel; a flexibility which is desirable, given
that most of the disputes which involve estoppel arise in informal
factual situations where to seek to impose rigid requirements may
defeat the purpose of the doctrine’.
This may, however, be contrasted with the less complimentary tone
adopted by Wells in the same journal. In her article entitled ‘The
element of detriment in proprietary estoppel’ [2001] Conv 13, Wells
concentrates on assessing the various headings under which the
claimant in Gillett was found by the Court of Appeal to have
suffered detriment. On the basis of her analysis, Wells agreed that,
all things considered, the claimant’s plea of proprietary estoppel
clearly deserved to succeed. In her view, however, the principles
relating to detriment were not clarified by the decision and the
requirement for detriment has now become unnecessarily confused
and complicated because the Court of Appeal did not fully explore
the full implications of its decision.
(d) Conditional wills
What is a conditional will? An ordinary will comes into operation as
soon as the testator dies. Occasionally, however, a testator
expresses his will to be conditional upon his dying in particular
circumstances or conditional upon the occurrence of some other
specified event. A will of this nature is known as a conditional will.
Where a will is framed in such terms, it will not come into
operation on the testator’s death unless the condition has been
fulfilled or the event has duly occurred.

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ESSENTIAL SUCCESSION

Examples of cases in which testators have been held by to have

made conditional wills include:
• Re Thomas (1939), where the will was qualified by a codicil
which stated that, ‘If I survive my wife and inherit under her
will ... etc’;
• In the Goods of Robinson (1870), where the will began with the
words ‘In case anything should happen to me during the
remainder of the journey’; and
• Lindsay v Lindsay (1872), where the material phrase was ‘If I
should die at sea or abroad’.
Situations in which testator’s reference to some future event does not give
rise to conditional will
• It sometimes happens that a will refers to a future event which
may or may not occur not as a condition to be fulfilled before the
will can take effect, but merely to explain the reason why the will
was made. The courts have held in cases like In the Goods of
Dobson (1866) and Re Vines (1910) that where the reference to a
future event is construed in this manner, the will takes effect on
the testator’s death even if the envisaged event does not occur.
In Dobson, for example, the will commenced with the words ‘In
case of any fatal accident happening to me, being about to travel
by railway, I hereby leave ...’. The testator returned safely from
the journey, but the will was nevertheless held to be valid, as it
was not intended to be conditional on the testator surviving the
journey.
• Moreover, even where the wording employed by the testator is
such that the will would ordinarily be construed as conditional,
the court may nevertheless deduce from the surrounding
circumstances that the testator did not, in fact, intend it to be a
conditional will. This is illustrated by In The Goods of Cawthorn
(1863), where the testator commenced his will with the words
‘In the prospect of a long journey, should God not permit me to
return home I ... make this my last will’. The will was drawn up
before the journey, but was not executed until several months
after the testator’s return. The court therefore concluded that at
the point of its execution, the testator could not have intended
the will to be conditional upon a journey that had already taken
place.
Is extrinsic evidence admissible to prove intention to make a conditional
will? A particular issue which has come before the courts in recent

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 INTRODUCTION TO WILLS

times is whether extrinsic evidence can be relied on to prove that a

testator intended his will to be conditional, where the material
condition is not referred to in the will itself. This issue was raised
in Corbett v Newey (1994), where T made a will in February 1989, in
which she left two farms to her nephew, W, and her niece, S, and
also left her residuary estate to them in equal shares. A few months
later, T decided to make inter vivos gifts of the farms to W and S and
to make a new will which would take account of these gifts by
leaving the residue, not to W and S, but to her great-nephews, J1
and J2.
A new will was prepared according to T’s instructions.
Arrangements for the transfer of the farms to W and S, however,
ran into difficulties. In view of these difficulties, T, when executing
the new will prepared for her in September 1989, left it undated
and instructed her solicitors to date the will only when the transfers
to W and S went through. The conveyances were finally made in
December 1989 and the solicitor informed T in writing that he had
now dated the will, but T did not sign the will again thereafter. W
challenged the validity of the new will, claiming that the fact that T
had not dated the will when executing it in September meant that
she did not at that point have the required testamentary intention
that the will should take effect immediately on her death. Rejecting
this claim, the trial judge held that T had not dated the will simply
because she intended it to take effect on the condition that the
transfers to W and S went through and it did not matter that this
condition was not set out in the will. As the condition had been
fulfilled, the will in his view was valid.
W’s appeal against the trial court’s decision was upheld. In so
doing, the Court of Appeal held that:
(i) the new will could not take effect as an ordinary unconditional
will, since the evidence suggested that this was not what T had
intended when she executed this will. On the contrary, she
clearly regarded the transfer of the farms to W and S and the
making of the new will as interrelated transactions and it
appeared from the evidence that she intended the will to be
conditional on the effective inter vivos transfer of the farms;
(ii) despite the fact that the evidence suggested that the testatrix
intended the new will to be conditional on the transfer of the
farms, it could not be treated as a valid conditional will, since
the relevant condition did not appear on the face of the will.
(For a more detailed commentary of this case, see Roe’s article in
(1997) 127 NLJ 128–29.)

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ESSENTIAL SUCCESSION

Devolution of property by means other than wills

In a variety of circumstances, property may devolve on the death of its
owner without having been disposed of under his will. The most
significant methods of dictating the manner in which property is to
devolve on death without having to make a will are as follows:
(a) Revocable inter vivos dispositions
English law generally maintains a clear cut distinction between
inter vivos dispositions of property and dispositions made by will.
The most significant differences between the two types of
dispositions are that:
• the formal requirements for will making are not the same as
those for an inter vivos disposition;
• a will ordinarily comes into effect on T’s death while an inter
vivos disposition takes effect in the lifetime of the party who
makes the disposition.
In spite of these differences, some scope exists for a property owner
(O) who wants to enjoy his property in his lifetime and then leave
it to another person (B) to achieve this outcome by means of an inter
vivos disposition rather than a will. All that this requires is for O to
transfer the property to trustees under an inter vivos settlement,
which requires the trustees to hold the property on trust for O for
life, remainder to B, while making sure to that under the terms of
the trust, O is invested with the power to revoke T’s gift.
(b) Survivorship under joint tenancies
Where two parties agree that whichever one of them dies first, his
property will pass to the other, the usual course is for them to
execute mutual wills to this effect. A similar result may, however, be
achieved where both parties arrange for the property in question to
be held by them as joint tenants. If either party dies while the joint
tenancy is subsisting, the property will automatically devolve on
the other party under the right of survivorship (jus accrescendi).
(c) Benefits payable under life insurance policy
A person who wishes to provide for others after his death may also
do so by means of an insurance policy, as happened, for instance, in
Foskett v McKeown (2000). Under such a policy, the insurer, in return
for payments made by the policyholder (namely, the person taking
out the policy) undertakes to pay an agreed sum to beneficiaries
specified in the policy, on the policyholder’s death.

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 INTRODUCTION TO WILLS

Where the beneficiaries are the policyholder’s spouse/children,

s 11 of the Married Women’s Property Act (MWPA) 1882 requires
the sum assured to be held on trust by the insurer so that it passes
directly to the beneficiaries on the policyholder’s death and does
not become part of his estate. See Re S (Decd) (1995). For a detailed
examination of this statutory provision, see Hamsworth’s article
‘Life assurance and the cohabitant’ [1998] 57 CLJ 55.
In the case of beneficiaries other than spouses and children, the
same end may be achieved where the policyholder expressly
assigns his legal and equitable interest to the insurer to hold on
trust for the intended beneficiaries.
(d) Nominations
A person who is entitled to funds or assets that are in the hands of
another party may specify in his will that on his death, such funds
or assets are to be paid to a particular beneficiary. In certain
instances, the same object may be achieved by means of a
nomination. This is a written direction by a person on whose behalf
certain types of funds or assets are held (the nominator) to the
person holding such funds to pay the funds to some other person
(the nominee). As explained by Lord Mersey in Eccles Provident
Industrial Co-op Society v Griffiths (1912), the primary purpose of
such nominations was to allow persons with modest funds held on
their behalf by certain bodies to dispose of them on death without
going through the trouble and expense of making a will.
A nomination may be statutory or non-statutory.
Statutory – These are expressly provided for by various statutes and
include nominations by:
• trade union members of union benefits due to them;
• investors in Friendly/Provident Societies and the Trustee
Savings Bank (who can make nominations up to a £5,000 limit);
• savers with the National Savings Bank/investors in National
Savings Certificates. (who are not subject to a corresponding
limit regarding the amount they can nominate, but whose
nominations must have been made before May 1981).
Non-Statutory – Such nominations are usually made in the context
of contributory pension schemes. The rules of such schemes
usually provide that if a member dies before his retirement, certain
benefits shall be paid to persons nominated by him. This was the
case for instance in Re Danish Bacon Co Ltd (1971), where an

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ESSENTIAL SUCCESSION

employee had the right to nominate a person to receive benefits

under a company pension scheme if he died before qualifying for
his pension. He initially completed the appropriate form that was
duly signed and witnessed, nominating his wife, but later wrote to
the company changing the nomination. On his death, it was
contended that the later nomination was of no effect, since it had
not been executed in the manner prescribed by the WA. It was held
that the employee acquired an equitable interest under the pension
fund trust deed and the nomination was in essence an inter vivos
contractual arrangement disposing of the equitable interest and not
a testamentary disposition which had to made by will in order to
be valid. See, also, Baird v Baird (1990).
Comparison between nominations and wills – Statutory nominations
resemble wills in being ambulatory. This means that, like wills, they
do not take effect until the death of the nominator and he can
accordingly dispose of the assets or revoke the nomination in his
lifetime. Nominations do, however, differ from wills in several
respects, namely:
• nominations can be made by persons over 16, while a will is
valid only if T has attained majority (s 7 of the WA);
• the formalities which must be observed in making a nomination
are determined not by the WA, but by the relevant statutory
provisions or pension scheme rules, as the case may be;
• where a nominator has also made a will, funds that are subject
to a nomination do not form part of the estate that passes under
his will;
• as a corollary to this, a nomination is not revocable by a
subsequent will or codicil, but only by a later nomination.
(e) Donatio mortis causa (DMC)
A DMC is a gift made in the donor’s lifetime, which is expressed to
be conditional upon and intended to take effect on his death. It is
neither an inter vivos gift in the proper sense, nor is it a fully fledged
testamentary gift: see Re Beaumont (1902).
Three conditions must exist in order for a valid DMC to arise. As
outlined by Nourse LJ in Sen v Headley, these conditions are as
follows:
(1) Gift must be in contemplation of donor’s impending death (see Re
Craven’s Estate (1937))

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Points to consider:
• Is there a valid DMC where the donor dies from a cause
other than the one contemplated? See Wilkes v Allington
(1931) (which established that the DMC would still be valid).
• Is there a valid DMC where the donor’s perceived cause of
death ‘exists only in his fancy or imagination’? See Thompson
v Mechan (1958), where a donor who was terrified of flying
made a gift of property to take effect if he did not survive the
journey. Held, the donor’s irrational fear of flying was not the
type of contemplation of death that would give rise to a valid
DMC. Contrast Re Miller (1961).
• Is there a valid DMC where the contemplated event is the
donor’s suicide? In Re Dudman (1925), it was held that as a
matter of policy there would not be a valid DMC where a
donor made a gift in contemplation of his suicide and later
committed suicide.
(2) Gift must be made conditional upon death
The gift must be made upon the condition that it becomes
absolute and perfected only on the donor’s death and remains
revocable and ineffective until then. This means in particular
that:
• there is no valid DMC if the donor’s intention is to make an
immediate inter vivos gift;
• if the contemplated death, which constitutes the material
condition, does not occur, the property reverts to the donor.
(3) The subject matter must be delivered to the donee
The donor must deliver the subject matter of the gift to the
donee with the requisite intention to make a gift. In this
connection:
• the act of delivery must be in the donor’s lifetime – see Bunn
v Markham (1816);
• the delivery must be of the property which constitutes the
subject matter of the gift or of the means of gaining control
of such property. For example:
❍ passbook; deposit books to donor’s bank accounts; Cain v

Moon (1896); Birch v Treasury Solicitor (1951);

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ESSENTIAL SUCCESSION

❍ keys to safe containing the property. See Re Lillingston

(1952); Re Mustapha (1891);
❍ keys to strongbox containing title deeds to house. See Sen
v Headley (1991).
Note: the suggestion in Re Craven that retention of a spare key by
the donor after having given the key to the donee would not
constitute effective delivery. Contrast, however, with Woodard v
Woodard (1995), where it was held that there was sufficient
delivery, even though the donor had retained a set of keys to the
car which constituted the subject matter of the gift.
Effect of a DMC on T’s death. This will depend on the nature of the
property in question:
• Where the subject matter of a DMC is a chattel which has
been delivered to the donee (or he has been given the means
of gaining access to it), the property passes directly to the
donee on the donor’s death; see, for example, Re Lillingston
(1952), where the property was jewellery, and Woodard v
Woodard (1995), which involved a car.
• Where the subject matter of a DMC is property, which cannot
be transferred by mere delivery (for example, land), legal
title passes on the donor’s death to his personal
representative and not the donee. Equity will, however,
compel the personal representative to vest the property in
the donee despite the fact that the gift was not by will. See,
for example, Sen v Headley (1991).

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