APPENDICES. APPENDIX A. SUGGESTIONS TO PERSONS TAKING INSTRUCTIONS FOR WILLS. I. General Suggestions. FEW of the duties which devolve upon a solicitor more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills. It frequently happens that, from a want of familiar acquaintance with the subject, or from the physical weakness induced by disease (where the testamentary act has been, as it too often is, unwisely deferred until the event which is to call it into operation seems to be impending), testators are incapable of giving more than a general or imperfect outline of their intention, leaving the particular provisions to the discretion of their professional adviser. Indeed, some testators sit down to this task with so few ideas upon the subject, that they require to be informed of the ordinary modes of disposition under similar circumstances of family and property, with the advantages and disadvantages of each; and their judgment in the selection of one of these modes is necessarily influenced by, if not wholly dependent on, professional recommendation. To a want of complete and accurate information as to the consequences of their proposed schemes, must be ascribed many of the absurd and inconvenient provisions introduced into testamentary gifts, to say nothing of the obscurities and inconsistencies which frequently throw an impenetrable cloud over the testator's real intentions. It may be useful to mention some particulars on which information should be obtained in taking instructions for a will, most of the inquiries being suggested by the various classes of cases discussed at large in this work, and being framed with a view to prevent such questions as those cases present. It will be obvious that the nature of the inquiries in every case must be greatly regulated by the situation in life and other circumstances of the testator. They may be distributed into those that relate-first, to the sub- [*1660] ject, and secondly, to the objects of testamentary disposition, including in the former some general points. (I.) In relation to the subject of gift.-1. Where real estates are to be specifically devised, the title-deeds, or a recent abstract of the title, should if possible be seen. The neglect of such investigation often occa- Investigation sions the omission of small parcels, or even more serious mis- of title. descriptions, misstatements of tenure, omission of special provisions adapted to the state of the title, &c. And if the testator has made a marriage or other settlement, or is entitled to any interest in settled property, the settlement or will should be inspected, in order to ascertain the nature and extent of his interest and powers. Under his marriage settlement he may have a power of jointuring and charging portions, and would probably possess a general power of appointment in default of issue. The result of such inspection may sometimes be to show that the property which the testator supposes to be at his own disposal is tied up by his settlement. 2. Where real estates are to be specifically devised, they should be described clearly and intelligently, and by reference to some permanent characDescription of teristic, as their locality. A reference to occupancy, being an incident liable to change, is in general better omitted, unless lands. it form a necessary discriminating feature in the description. And where lands specifically devised are described by their local situation and occupancy, it should be carefully ascertained that the whole of the land answering to the locality, answers also to the occupancy, or, in other words, that both parts of the description are co-extensive, to avoid any question as to the less comprehensive term being restrictive. 3. If any contract for the sale or purchase of real estate is pending, or likely to be pending at the testator's death, the destination of the purchase Contract for money or of the estate should be provided for (a). In the case sale or purof a contract for purchase, power should be given to the execuchase. tors or trustees to deal with the contract, and provision should be made for any question which may arise between the devisee and the residuary legatee, in case the contract should not be strictly enforceable, and for compensating the devisee if the contract fails. 4. Where the subject of devise is a mortgaged estate, inquiry should be made whether the devisee is to take it freed from the mortgage; and, if so, words should be used distinctly conferring on him the right to have it exonerated out of the testator's other property (b). Mortgaged lands. Emblements. 5. The emblements on a devised estate are sometimes of great value; and though if the estate descends they would go to the executor and not to the heir, yet when it is devised, they go to the devisee in the absence of a provision to the contrary, thus giving him a great advan[*1661] tage over a pecuniary legatee, or a general legatee for life, who is not entitled to interest during the first year. The testator's intention on this head should be ascertained. Specific bequests. 6. Where stocks, funds, or securities are specifically bequeathed, care should be taken to describe them accurately, and it should be pointed out to the testator that such gifts are liable to ademption by sale or change of investment. On the other hand, gifts of this nature are favored in the administration of the assets. 7. If the testator is in partnership, either in his general business or in any particular adventure, inquiry should be made how he wishes his interest to be dealt with. The articles of partnership should be examined, in order to see if they contain any power to be exer Disposition of share in part nership. cised by will. (a) As to the powers of the personal representatives of a testator or intestate to convey land which at his death is subject to an enforceable contract for sale, see the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 4. And as to the powers of tenants for life to complete contracts for sale entered into by their predecessors, see the Settled Land Act, 1890 (53 & 54 Vict. c. 69), s. 6. (b) See 17 & 18 Vict. c. 113, ante, p. 1455. Testator 8. Testators sometimes receive moneys belonging to their children, for which the latter hold no security or acknowledgment. Inquiry should in all cases be made as to the existence, or the probability of the future existence, of any unsettled accounts or claims between the testator and his children. holding money belonging to his children. 9. Where there is an immediate devise to a class of persons, who may not be in existence at the death of the testator, as to the children of A., who may then have no children, it should be ascertained what, in this Intermediate event, is to become of the intermediate profits. In the absence income. of any provision of this nature, they will go to the residuary devisee or heir-atlaw. A similar question may arise as to intermediate income of a gift of personal estate which may not take effect immediately. Fund for payment of debts, &c. 10. Under some circumstances, it may be proper to inquire whether any specific fund, constituted of real or personal estate, is to be appropriated for payment of debts, funeral and testamentary expenses, and legacies; and it should always be stated, whether a fund so appropriated is to exempt the general personal estate from being first applied, as is generally intended, though the intention frequently fails for want of an explicit expression of it. Legacies to debtors and 11. It should be ascertained whether any of the legatees are indebted to the testator; and if so, whether and in what manner the debts are to be brought into account. It should be clearly expressed whether or not legacies to creditors of the testator are to go in satisfaction of their claims. creditors. Are advancements by the testator to his children to be ac- Advancecounted for? ments. 12. Gifts of residuary real or personal estate should be ex- Residuary pressed in general terms. gifts. 13. Where general or residuary real or personal estate is given to several persons in succession, it should be considered and expressly declared whether the conversion is to be immediate, or whether the tenant for life is to enjoy the property in specie; and whether the trustees are to have any and what discretionary power to delay or suspend the conversion. As to conversion of general or residuary estates. Are household and domestic effects, and particularly consumable articles, to be converted? If not, who is to take them? Are leaseholds to follow the destination of the freeholds, or to be converted with the personal estate? 14. If the conversion is generally, or as regards any particular property or investment, to be suspended, the testator should declare, * if [*1662] such is his intention, that the actual income arising from property or investments of a precarious or perishable nature is to be enjoyed as income during the suspension, also whether any and what discretion is to be vested in the trustees as to such property and as to reversionary and other property not immediately salable with advantage. Income of wasting property till conversion. Further questions as to conversion 15. The following further questions arise with regard to getting in, converting, and dealing with the testator's general personal estate:What investments are to be authorized? Are the trustees to have power to invest in land generally, or for a particular purpose, as the purchase of a residence? Whether, where a son or other near object of the testator's regard is in business, the trustees are to lend any trust money to him, and to what amount and on what security? Whether any securities which the testator may possess at his death are to be retained? Whether any indulgence is to be shown to any particular debtors? Power to vary 16. A power for the trustees to vary securities should be ininvestments. serted in the will, if it contains an express investment clause. 17. At what time are pecuniary legacies (if any) to be paid? Are such legacies to carry interest, and if so, from what time, and at what rate? Where a life interest is given in a specific fund or in the residuary personalty or any share of the residue, the tenant for life has income or interest from the testator's death; but in the case of a general legacy of money or stock, the tenant for life will have no income in respect of the first year, unless it is expressly given to him. Payment of legacies, interest, &c. of legacies. 18. Are all pecuniary legacies to abate in case of deficiency of assets? It is Abatement generally proper to give a legacy to the testator's widow for immediate use; such a legacy will abate pari passu with others, if the assets are deficient, unless the will contains a declaration to the contrary. 19. How are annuities to be raised and secured, whether by the charge or Annuities. appropriation of a particular fund or estate, or by the executors purchasing a government annuity or otherwise? 20. Are pecuniary legacies and annuities to be paid free from legacy duty? Annuities (including rent-charges) and life-interests should generally be given free from legacy duty or succession duty. Legacy duty. Appointment Acts, and of Extension of powers, &c., of Settled Land Acts. 21. Where lands are devised in strict settlement, trustees should be appointed for the purposes of the Settled Land Acts, and also for the purposes mentioned in the 42nd section of the Conveyancing and Law of Property Act, 1881. 22. Where lands are devised in strict settlement, it should be considered whether any and which of the following special powers and provisions, in addition to the powers conferred by the Settled Land Acts should be inserted in the will: (i.) Power for the tenant for life to exercise all or some of his statutory powers without any notice to the trustees (c). (ii.) Power for the tenant for life to sell or lease the principal mansionhouse, park, &c., without consent of the trustees or leave of the Court (d). [*1663] (iii.) Power for the tenant for life to raise money for purposes not authorized by the Acts (e). (iv.) Power to effect improvements without any certificate, or order of Court (ƒ). (v.) Extension of powers to exchange and purchase lands (g). (vi.) Extension of powers of investment and application of capital moneys (h). (vii.) Proviso dispensing with capitalization of mining rents (i), or of proceeds of sale of timber (k). (c) See S. L. Act, 1882, s. 45: S. L. Act, 1884, s. 5: S. L. Act, 1890, s. 7. (d) See S. L. Act, 1890, s. 10, repealing S. L. Act, 1882, s. 15. (e) See S. L. Act, 1882, s. 18: S. L. Act, 1890, s. 11. (f) See S. L. Act, 1882, s. 26: S. L. Act, 1890, s. 15. (g) See S. L. Act, 1882, ss. 4, 23. (h) See S. L. Act, 1882, ss. 21, 25; S. L. Act, 1890, s. 13. (i) See S. L. Act, 1882, s. 11. (k) See S. L. Act, 1882, s. 35. (viii.) Power for a sole trustee to receive and give receipts for capital moneys, and otherwise exercise the statutory powers conferred on "trustees of a settlement" (l). 23. It will sometimes be necessary, even where an infant devisee is to take the land as land, having regard to the circumstances affecting the devised estate, to consider whether the powers of management vested in Powers of trustees by the 42nd section of the Conveyancing and Law of management. Property Act, 1881, are sufficiently ample or special, or whether express powers should be substituted for, or given to the trustees in addition to such statutory powers. It would seem that the section does not apply where land is devised in trust for sale with a discretion to the trustees to postpone the sale. In such cases, therefore, unless a trust of rents and profits till sale is declared in favor of the infant (m), it will always be advisable to insert express powers of management, which may be done by reference to the statute, or otherwise, as may be desired. Also where the devise is immediately to an infant in fee simple, as the section apparently applies only to the case of an infant taking an interest under a settlement, i e., a disposition by which successive interests are created. 24. Where an estate held under one title is devised in parcels, provision should be made for the custody of the title-deeds; and, in the Splitting of case of contiguous properties, for any rights of way or other easements that may be required for the full enjoyment of any parcel. And if property included in one mortgage is devised in parcels to different persons cum onere, the manner in which the charge is to be borne should be stated. estates held under one title. Easements. Estates in mortgage devised cum onere. Power of appointment over copy 25. In disposing of copyholds, vest a power of appointment either in trustees or in the beneficial devisee. Where the power is given to trustees, it should be made to accompany the office. Where it is given to a beneficial taker, it should be made exercisable by will; so that in case of his death before admittance, his testamentary appointee will not have to pay a double set of fees and fines. The existence of a power of appointment over copyholds may often be the means of considerable saving to the estate. services. holds. 26. It may be advisable to insert provisions empowering a person appointed a trustee, being a solicitor, or other professional person, to transact business relating to the trust-estate, and to charge for his [* 1664] Also in some cases to empower a trustee to purchase the trust property. 27. A person who takes only a partial interest under the will should not, generally speaking, be appointed sole executor or Sole executor trustee. Privileges trustees. or trustee. (II.) In relation to the objects of Gift.-When a testator proposes to make a disposition of his property in favor of his wife and children (naturally the first objects of his regard), several modes of disposition present Provision for themselves. One is to give the income to the wife for life, wife and clothed or not with a trust for the maintenance of the children, children. and to give the inheritance or capital to the children equally, subject or not to a power in the wife of fixing their shares, or limiting the property to some in (1) See S. L. Act, 1882, s. 39. (m) If a trust of rents and profits is inserted, the infant will be "beneficially entitled in possession within the meaning of the Act (see s. 2, sub-s. (iii)), and s. 42 will apply. |