Law of Succession: Revival, Republication, Legacies, and Devises

REVIVAL OF WILLS AND TESTAMENTS

• Definition of Revival: Revival occurs when a revoked will is "resurrected" or brought back to life after it has been legally voided, making it operative once again.
• Conceptual Foundation:
  • There must have been a previously valid revocation of the will; if the will was never revoked, there is nothing to "revive."
  • The will must physically exist at the time of the revival effort.
  • A will that has been physically destroyed (e.g., burned or torn) cannot be revived.
• Statutory Basis: Section 16(1) of the Wills Act 1959 states that no will or any part thereof which has been revoked in any manner shall be revived otherwise than by the re-execution thereof, or by a codicil executed in the manner required by the Act, showing an intention to revive the same.

METHODS AND REQUIREMENTS OF REVIVAL

• Primary Methods of Revival:
  • Re-execution: The testator signs the revoked will again in the presence of two witnesses who also sign the document, adhering to the formalities of Section 5 of the Wills Act. This effectively creates a new, valid will.
  • Duly Executed Codicil: A separate testamentary document, executed with the same formalities as a will, that explicitly states or strongly implies the intention to bring the original will back into effect.
• Requirement 1: Physical Existence:
  • The will must be in existence at the time of revival.
  • Rogers v Goodenough (1862): The testator made a second will with a revocation clause and subsequently burned the first will. He later made a codicil attempting to revive the first (burnt) will. The court ruled the codicil was ineffective because a destroyed will no longer exists to be revived. A will can only be revived in its original physical condition. The second will (or intestacy) governed the estate.
• Requirement 2: Valid Revocation:
  • There must be a valid revocation of the initial will for revival to be necessary.
• Requirement 3: Clear Intention to Revive:
  • For re-execution, the act itself demonstrates intention.
  • For revival by codicil, the intention must appear on the face of the codicil via express words, a disposition inconsistent with any other intention, or other expressions conveying certainty.
  • In the Goods of Steele (1868): Intention to revive must be clear on the face of the codicil. If a codicil refers by date to an existing will and "confirms" it, this is sufficient, as "confirm" is an apt word for "revive."
  • In the Goods of Davis [1952]: A testator made a will before marriage (revoked by marriage). Later, he wrote on the envelope containing the will: "The herein name Ethel Pheboe Horsley is now my lawful wedded wife," and signed/attested it. This was held to be a codicil with an expression conveying the intention to revive.
  • In the Goods of Terrible (1858): A memorandum on the will replacing a deceased wife's name with a second wife's name (signed and witnessed) was held to be a codicil reviving the will, despite not calling itself a codicil or referring to the will by name.
  • Marsh v Marsh (1860): Simply attaching a codicil to an earlier revoked will with tape is insufficient to show an intention to revive.
  • Goldie v Adam [1938]: A mere reference to an old will date in a codicil (due to a draftsman's error) without clear intent was insufficient to revive it.
  • In the Goods of Stedham (1881): A codicil mistakenly dated for an 1877 will (instead of 1878) successfully revived the 1877 will because the draftsman had applied the testator's mind to the 1877 provisions.

THE SCOPE AND EFFECT OF REVIVAL

• Partial vs. Full Revival (Section 16(2) Wills Act):
  • If a will was partly revoked first, then completely revoked, and subsequently revived, the revival only brings back the parts that were NOT revoked earlier.
  • The earlier revoked parts remain "dead" unless the testator explicitly demonstrates an intention to bring those specific parts back.
  • Example Scenario: If Robert revokes 3 clauses in 2021, revokes the whole will in 2022, and revives it in 2023, the 3 clauses stay revoked unless specifically mentioned for revival.
• Effective Date of the Will (Section 30(2) Wills Act):
  • A will that is re-executed, republished, or revived is deemed to have been made at the time of the re-execution, republication, or revival.
• Validation of Alterations: Revival can validate invalid alterations made after the original execution of the will (e.g., Neate v Pickard (1843)).
• Impact on Intervening Wills:
  • Re Pearson: If a revived will contains a revocation clause, it will completely revoke any intervening wills.
  • In the Goods of Dyke: If the revived will lacks a revocation clause, it only revokes the intervening will to the extent of any inconsistency (both documents may be admitted to probate).

REPUBLICATION OF WILLS

• Definition: Republication is the confirmation of a currently valid, existing will, giving it a new starting date.
• Contrast with Revival: Republication applies to valid wills; revival applies to revoked wills.
• Methods of Republication:
  • Re-execution of the existing will (Section 5).
  • Executing a subsequent codicil referring to the previous will.
• Intention: Courts infer intention to republish much more readily than revival. A simple reference like "codicil to my will dated…" or "I confirm my said will" is sufficient (Re Harvey [1947]).
• Validity of Re-execution: The ceremony must have true testamentary intent.
  • Dunn v Dunn (1866): A testatrix signed her will again merely to "officially" hand it over for safekeeping. This was held NOT to be a re-execution because there was no intent to make a new testamentary act.
• Effects of Republication:
  • Updating Beneficiaries: Descriptions of persons refer to those satisfying the description at the time of republication.
  • Re Hardyman [1925]: A gift was left to "my cousin's wife." The first wife died, and the cousin remarried. The testatrix then republished the will. The second wife was entitled to the gift as she fit the description at the date of republication.
  • Updating Assets: The will is deemed made at the date of republication, which can capture newly acquired or modified assets.
  • Re Reeves [1928]: A gift of a "present lease" (with 4 years remaining) was updated to include a renewed 12-year lease because the will was republished after the renewal.
  • Re Champion [1893]: Republication allowed a gift of shares to apply to new shares resulting from a company restructure.
  • Curing Formal Defects:
  • Anderson v Anderson (1872): A gift to a witness is void under Section 9. However, if the will is republished by a codicil NOT witnessed by that beneficiary, the gift is saved.

CLASSIFICATION OF TESTAMENTARY GIFTS (LEGACIES AND DEVISES)

• Terminology:
  • Legacy: A gift of personalty (personal property).
  • Devise: A gift of real estate.
• 1. Specific Legacies:
  • Refers to something the testator identifies by description, separating it from the general mass of the estate (e.g., "my Birkin Hermes handbag" or "my British Airways shares").
  • Characteristics: Must be part of the testator's property and be severed from the estate.
  • Ademption: Subject to failure if the property is sold or destroyed before death.
  • Bothamley v Sherson (1875): A gift of "all my stock in the Midland Railway Company" was specific because it was a distinguished part of the estate.
• 2. General Legacies:
  • A gift of personalty not identified as a specific item; it is provided out of the general estate (e.g., "$\pounds 100$ money" or "$1,000$ shares").
  • Absence of "My": Usually missing possessive words.
  • Re Gage [1934]: A gift of "the sum of $\pounds 1,150$ Five per Cent War loan" was general despite the testator holding that exact stock.
  • Re Willcocks [1921]: Gift of $948$ Queensland Stock was general as it didn't refer to property "belonging to her."
  • Re O'Connor [1948]: A gift of $10,000$ shares was general because the testator only owned $9,000$; the executor must buy the remainder to satisfy the gift.
• 3. Demonstrative Legacies:
  • A hybrid: general in nature but pointing to a particular fund for satisfaction (e.g., "$\text{RM} 1,000$ from my account at Barclays Bank").
  • Advantage: Does not adeem; if the fund is empty, the deficit is paid from the general estate.
  • Re Webster [1937]: A gift of $\pounds 3,000$ payable out of capital in a family business was demonstrative. When the business share was worth less, the son received the balance from the residue.
• 4. Pecuniary Legacies: Simply a bequest of money (can be specific, general, or demonstrative).
• 5. Residuary Legacies: A gift of the remainder of the estate after all other gifts, debts, and expenses are paid. It prevents intestacy.

ESTATE ADMINISTRATION AND PROPERTY DISPOSAL

• Estate: Includes everything the deceased owned or owed (properties, belongings, investments, debts).
• Administration Steps:
  1. Collect all assets.
  2. Pay debts and liabilities.
  3. Distribute the estate according to the will or Distribution Act 1958.
• Property Disposable by Will (Section 3 Wills Act):
  • Must be solely owned by the testator.
  • Trust Property: Excluded; the deceased does not personally own it.
  • Nominated Property: Excluded; passes via "fast track" statutory forms.
  • EPF (Section 54(1) EPF Act 1991): Savings do not form part of the estate; they go directly to the nominee.
  • Insurance (Section 166 Insurance Act 1996): Nominations for spouse/child create a statutory trust; proceeds pass directly to the nominee.
• Charitable Gifts: Require certainty of intention, subject matter, and objects.
  • D'Aguiar v. Commissioner of Inland Revenue: Established criteria for charitable gifts—must benefit the community and fall within the legal scope of charity.

FAILURE OF TESTAMENTARY GIFTS

• General Rule of Failure: Failed gifts usually fall into the residuary estate unless a contrary intention is shown (Re Fraser [1904]).
• 1. Witness Cannot Benefit (Section 9 Wills Act):
  • A gift to a witness or their spouse is "utterly null and void."
  • Purpose: To ensure unbiased witnesses and prevent fraud/undue influence (Estate of Bravda [1968]).
  • Ross v Caunters: A solicitor can be negligent if they allow a beneficiary to witness a will.
• 2. Disclaimer:
  • The law cannot force a person to take an estate against their will (Townson v Tickell (1819)).
  • Retraction: Only possible if no one has altered their position in reliance on the disclaimer (Re Cranstoun [1949]).
  • Conduct: Acceptance by conduct prevents later disclaimer (Re Hodge [1940]).
  • Partial Disclaimer: Generally not allowed if the gift is one aggregate mass (Guthrie v Walrond (1883)).
• 3. Doctrine of Ademption:
  • Occurs when the subject matter of a specific gift is disposed of, destroyed, or substantially changed in character before death.
  • Example: Selling a Birkin bag before death for travel money; the gift fails.
  • Lim Soo Siam v Leow Yong Moey [1933]: A gift was partially adeemed when the testator paid the daughter's marriage expenses during his lifetime.
• 4. Doctrine of Satisfaction:
  • An equitable presumption that a lifetime gift is an advance payment of an inheritance.
  • Example: If a will leaves $\text{RM} 100,000$ but the testator gives $\text{RM} 25,000$ while alive, the beneficiary gets $\text{RM} 75,000$ from the will.
• 5. Public Policy:
  • Gifts fail if they encourage illegal acts (Thrupp v Collett (1858) - buying discharges for prisoners).
  • Forfeiture Rule: A killer cannot benefit from the estate of their victim (Jones v Roberts [1995]).
• 6. Uncertainty:
  • Gifts fail if the subject matter or beneficiary is impossible to ascertain.
  • Peck v Halsey (1726): "Some of my best linen" was too uncertain.
  • Re Golay [1965]: "Reasonable income" was UPHELD because "reasonable" is an objective standard the court can determine.
  • Asten v Asten [1894]: Bequeathing houses without specifying house numbers (when owning multiple relevant properties) rendered the gift void.
• 7. Divorce: Gifts and appointments to a former spouse fail unless the will shows a contrary intention.

THE DOCTRINE OF LAPSE AND ITS EXCEPTIONS

• General Rule: If a beneficiary dies before the testator, the gift lapses (fails).
• Exceptions:
  • Section 25 Wills Act (Gifts to Issue): If the beneficiary is the child/descendant of the testator and leaves their own issue (children/grandchildren) surviving the testator, the gift does NOT lapse. It passes as if the beneficiary had died immediately after the testator.
  • Davenport v Hanbur: "Issue" includes all lineal descendants, not just children.
  • Alternative Gifts: If the will specifies a substitute beneficiary (e.g., "To A, but if A dies before me, then to B"), the gift to B takes effect.
  • Foo Yin Choo v Foo Siew Lan [1972]: Gift to an adopted son didn't lapse because the will provided a gift over to his issue.
  • Future Gifts: A gift to A for life, then to children, does not necessarily lapse if A dies before the testator (Rackham v De La Mare).

ABATEMENT AND PRIORITY OF DEBTS

• Abatement: The reduction of legacies when estate assets are insufficient to pay funeral/admin expenses, debts, and gifts.
• Order of Abatement:
  1. Residuary Estate: Used first to pay debts.
  2. General Legacies: Reduced proportionately after the residue is exhausted.
  3. Demonstrative Legacies: Treated as specific for the amount available in the fund; any deficit is treated as a general legacy for abatement purposes.
  4. Specific Legacies: Last to be used for debt payment; they are prioritized for distribution.
• Tan Boon Soo v Choa Eu Seng: Legacies to males and females abate proportionately. An executor cannot prefer one legatee over another unless the testator intended so.

ELIGIBILITY OF BENEFICIARIES

• Who CAN be a Beneficiary:
  • Children: Once 18 (Age of Majority Act). For minors, 2 representatives/guardians act as trustees.
  • Mental Patients: Guardian/trustee manages the gift.
  • Bankrupts: Property vests in the Official Assignee for creditors. "Protective trusts" are often used.
  • Charities: Schools, clubs, or institutions for the relief of poverty, education, or religion.
  • Animal Welfare: Gifts to animals directly fail, but gifts to animal charities or "pet trusts" are valid.
  • Muslim Converts: A non-Muslim testator can bequeath property to a Muslim beneficiary under civil law.
• Who CANNOT be a Beneficiary:
  • Witnesses to the Will (Section 9 Wills Act).
  • Killers (Forfeiture Rule/Public Policy).
  • Perpetrators of Fraud/Coercion: Gifts can be set aside.
  • Cohabitees/Mistresses: No automatic rights under the Distribution Act 1958; they must be specifically named in a will.
• Rule in Strong v Bird: An imperfect gift (forgiving a debt) is perfected if the donor had a continuing intention to make the gift until death and the donee is appointed as the executor/administrator of the estate.