FE1 Exam Thread (Mod Warning: NO ADS)

_JOE_

JCJCJC wrote: »

Why would you think that issue was a red herring? Is there a reason why S117 wouldn't kick in? I go on the basis that generally every given fact in a problem has some relevance, the education referred to the NSM case and might tend to show further academic potential to be nurtured per the ABC case and there is your moral duty argument. My line was that the destruction of the original will was not valid because it wasn't done in her presence, and that then brought in dependent relative revocation which revived it, it was a mistaken attempt at revocation in the belief that she was about to make a new will. I thought the purported new will to the cats and dogs home was the only obvious irrelevant part. Ironic that her own dog probably ended up there ;-)

here's a snip from wiki on dependent relative revocation;

Many jurisdictions exercise an equitable doctrine known as dependent relative revocation ("DRR"). Under this doctrine, courts may disregard a revocation that was based on a mistake of law on the part of the testator as to the effect of the revocation. For example, if a testator mistakenly believes that an earlier will can be revived by the revocation of a later will, the court will ignore the later revocation if the later will comes closer to fulfilling the testator's intent than not having a will at all. The doctrine also applies when a testator executes a second, or new will and revokes his old will under the (mistaken) belief that the new will would be valid. However, if for some reason the new will is not valid and a court may apply the doctrine to reinstate and probate the old will, as the court holds that the testator would prefer the old will to intestate succession.

I might be all wrong, if so please explain to me :cool:

Without having seen the paper or any of the questions, if there was an issue with s117, (and a discrete one at that), i suspect it might have been to do with the strict 6 month time limit to make an application under that section?

law86

I took the same view as you JC, I thought the 117 was a relevant topic, irrespective of dominance of the wills. Hope I'm on the right track. Fair paper overall.

JCJCJC

_JOE_ wrote: »

Without having seen the paper or any of the questions, if there was an issue with s117, (and a discrete one at that), i suspect it might have been to do with the strict 6 month time limit to make an application under that section?

Not exactly Joe, but the time limit would have been worth a mention - I forgot it! For what it's worth, I've scanned the question, here it is, all debate welcome:

QUESTION SIX
In October 2008, Monica had to go into hospital for a serious heart operation. She decided that since there were so many risks involved that she should make a will in case anything went wrong. Monica was quite nervous at the thought of the operation so the nurse put her under light sedation. In the meantime, her solicitor Jack came into the hospital to help with drawing up the will. Since Monica was feeling a bit drowsy, she asked Jack to sign the bottom of the will for her. Jack did so with Monica's name and also signed his own name. He then asked the doctor and nurse who were tending to the patient in the bed next to Monica's to also sign. Neither the doctor or the nurse looked at the document - they just signed it as they were engaged in deep conversation.
Monica left all her worldly belongings to her husband Mike (worth approximately £500,000). She made no provision for her daughter, Cheryl, as she felt that she was old enough to look after herself now and besides, she had supported her for years while in University.
In August 2010, Monica discovered that Mike was having an affair with his secretary and threw him out of the house. She phoned Jack, her solicitor, and asked him to destroy the will she made in 2008 and rewrite a new one, leaving her entire estate to the cats and dogs home. Following the phonecall, Jack tore up the will and left it in a bag for shredding. He then drew up the new will as requested for Monica. However, that evening, Monica was knocked down and killed while walking the dog. She had not signed the new will.
Mike and Cheryl both claim that they should be entitled to something from Monica's estate.
Advise Mike and Cheryl.

law_lady

NoQuarter wrote: »

Well...that was easy!

I think the examiner must have seen me ask for a straightforward Leigh v Jack question!! Such a nice one to finish on, I thought I was taking a serious risk with my topics and I could have done 6 questions, plus probably bluffed treasure trove! Shame I was too tired to drink afterwards, that exam deserved a celebratory pint!

Congrats on finishing everyone!

Ruby83

JCJCJC wrote: »

Not exactly Joe, but the time limit would have been worth a mention - I forgot it! For what it's worth, I've scanned the question, here it is, all debate welcome:

My succession act says 12 months time limit for 117 application (s117(6)), my Griffith manual says 6 months. Presuming 12 is correct and having put down 6 in the answer, I crossed this out and put 12 months once I checked back with the succession act.
Thank God that's over anyway! Lots of celebratory drinks and sleeping due!

walrusgumble

it is 6 months since the divorce act. Where in the question did it mention that the will had since being taken out by the personal representative?

What about the husband's legal right share or part of the will? won't that be taken up ? he has not extinguished his rights to her will?

chopser

I have looked at almost identical past question and sample answer done for it and section 117 doesn't even come into it. Both wills are invalid by sec 78 and therfore it goes to rules of intestacy. husband gets 2/3 and Cheryl 1/3. Then there is just a quick mention that if it is actually construed as a valid will, then there maybe a cause of action under sec 117

CFOLEY85

hey guys.

I know Im abit premature but just wondering does anyone have an idea of when the results come out?

The prep courses seem to be startin the first wk of November. Surely the results wont be out that quick?

brian__foley

Ruby83 wrote: »

JCJCJC wrote: »

Not exactly Joe, but the time limit would have been worth a mention - I forgot it! For what it's worth, I've scanned the question, here it is, all debate welcome:

My succession act says 12 months time limit for 117 application (s117(6)), my Griffith manual says 6 months. Presuming 12 is correct and having put down 6 in the answer, I crossed this out and put 12 months once I checked back with the succession act.
Thank God that's over anyway! Lots of celebratory drinks and sleeping due!

Your version of the Succession Act, 1965, I assume, is in the un-amended form. Look up the amendment of s.117(6) which is what the manual would have been based on - 6 months.

NoQuarter

Thirdfox wrote: »

Just noticed the tag for this thread "kill me now" - very apt

Rosco1982 wrote: »

I'm guessing by red herrings one of them you're talking about is the daughters s117 rights ?

I actually thought the red herrings were the issue with whether the doctor and nurse were paying attention. I dont think it would have impacted one way or another but yet im sure some people spotted it as an issue (capacity - tsate of mind) and wrote about it.

chopser wrote: »

I have looked at almost identical past question and sample answer done for it and section 117 doesn't even come into it. Both wills are invalid by sec 78 and therfore it goes to rules of intestacy. husband gets 2/3 and Cheryl 1/3. Then there is just a quick mention that if it is actually construed as a valid will, then there maybe a cause of action under sec 117

This was exactly my answer, i first said that she died intestate but i figured that the 117 part was so glaring that maybe the courts could find a way to enact one will so i said exactly that and talked about 117.

NoQuarter

CFOLEY85 wrote: »

hey guys.

I know Im abit premature but just wondering does anyone have an idea of when the results come out?

The prep courses seem to be startin the first wk of November. Surely the results wont be out that quick?

December some time from what i gather!

JCJCJC

chopser wrote: »

I have looked at almost identical past question and sample answer done for it and section 117 doesn't even come into it. Both wills are invalid by sec 78 and therfore it goes to rules of intestacy. husband gets 2/3 and Cheryl 1/3. Then there is just a quick mention that if it is actually construed as a valid will, then there maybe a cause of action under sec 117

Can't agree. I think the first will is fine - where is the breach of S78? The capacity issue is dealt with in Glynn v Glynn and Elliot v Stamp. The witnesses need only be present together, and they witness the affirmation. They don't have to know its a will. Signature by Jack is ok -

It shall be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction.

2. Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.

Having thought about it some more, one error I now realise I made was not bringing in Cheese v Lovejoy, the torn-up will rescued from the bin - I think now that was more what he was after rather than dependent relative revocation. If the torn-up will can't be found, parole evidence will be admissable etc as to its contents. Has anybody seen the examiner's report from March 2010 on this question and if so what did he say?

JC

chopser

The capacity issue is fine with Glynn v Glynn as is the signature in B Mcloughlin

"Neither the doctor or the nurse looked at the document" but If they did not look at the document then they could not attest that it was properly signed.

I wrote from the point of view that it was not valid, but still feel that assuming it was valid and writing from that perspective would still warrant decent if not better marks than my answer.
In fairness I think the examiner just wants a decent discussion about what would happen both ways. And writing about a sec 117 I'm sure would be justified. no point sweating about it now.

NoQuarter

I thought the will was invalid because it was ripped up, even if it wasnt invalid, i think a discussion on the signature or on the doctor and nurses acknowledgment were a bit irrelivant and could have done without being discussed!

Interesteing question though and its mad to see how many different answers people come up with!

JCJCJC

We're only having a discussion for the craic of it, I'm not out to slam anybody's point of view here, we can only learn from teasing out the debate and checking sources.

Here's a relevant exerpt from "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham.

Dixon v. Solicitor to the Treasury, [1905] P. 42.

A testator sent instructions to his solicitors to prepare a new will, and tore off and destroyed the signature to the old will, because he thought it was necessary to destroy the old will before he could make a new one. The testator died before the new will was made.

Held: He only intended to destroy it if the new one should be made, and the first will remained valid.

I'm increasingly becoming convinced that Cheese v Lovejoy was very relevant.

JC

JCJCJC

chopser wrote: »

"Neither the doctor or the nurse looked at the document" but If they did not look at the document then they could not attest that it was properly signed.

Chopser - I don't agree! witnesses only witness the signature, they attest the signature, not the will - look at the section in the act again:

78(2). Such signature shall be made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time, and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall be necessary nor shall it be necessary for the witnesses to sign in the presence of each other.

Brian Foley to the rescue please!!!

JC

chopser

Yup I may be wrong entirely and in about the wording used in attest. But I still think that you have to witness the signing of the will and neither of them did. Anyone can verify it has been signed. It is important that the signing is seen.
I'm kicking myself either way, as not entirely sure if I am right.
I also stated that the solicitor was one person who signed as a witness to the signing, not sure how relevant that was as he was essentially signing as witness to his own signing.

NoQuarter

Well great news if the first will was valid becuase it strenghtens my discussion on 117


One more question, the easements question, it asked to discuss possible reforms! was that a bit of a trick question seeing as how the area has just been reformed??

JCJCJC

chopser wrote: »

Yup I may be wrong entirely and in about the wording used in attest. But I still think that you have to witness the signing of the will and neither of them did. Anyone can verify it has been signed. It is important that the signing is seen.
I'm kicking myself either way, as not entirely sure if I am right.

Not always! They can witness the acknowledgment - if T says 'that's my signature ' - in this case Jack's signature on T's behalf. From Pearce & Mee bottom of page 159

It is essential that the witnesses are present together simultaneously when the testator signs the will or acknowledges his signature. They do not need to see the signature or to know that the testator is signing a will provided that they see the act of signing, and where the testator acknowledges his signature, the witnesses must have had the opportunity to see it, even if they did not avail of the opportunity:

JC

JCJCJC

NoQuarter wrote: »

Well great news if the first will was valid becuase it strenghtens my discussion on 117


One more question, the easements question, it asked to discuss possible reforms! was that a bit of a trick question seeing as how the area has just been reformed??

Well, if you'd read the 17-page article I mentioned on Tuesday night by Tomas Bailey you'd be able to write at least 17 pages about it <grin>. I thought is was a crazy question, but it tends to prove that Griffiths are right when they say the Spring and Autumn papers are set together. It looks like that was set before the new Act went live on 1st January last - no-one in their right mind would ask that now there's recent law. At the time it was an opportunity to plough through the LRC reccommendations. Here's an excerpt from the article:

CREDIT TO AUTHOR

2010) 15(3) CPLJ 52 Article: Stuck in the Past—The Failure of the Land and Conveyancing Law Reform Act 2009 to Modernise the Law of Easements in Ireland

Tomás Bailey, BA, LLB Candidate (NUIG)


The essential nature and characteristics of an easement have developed at common law. While a right must possess four essential features, set out above, to be considered an easement, the exact point at which a right becomes an easement is largely determined on the facts of each case. In that sense, there is scope for uncertainty here. Statutory guidance on issues such as how specific a right must be to be considered capable of forming a grant, or the point at which a right is considered to amount to virtual possession of the servient tenement, would greatly assist the judiciary in determining the existence of an easement in each case and would thereby remove any uncertainty and inconsistency in the law here.

The inclusion in the 2009 Act of a non-exhaustive list of rights, exercisable as easements, that resemble the needs of property owners in modern times would have injected significant clarity into the law here. The LRC correctly asserted that the courts are best placed to develop the category of existing easements.

However, some statutory assistance would have been very helpful in light of the substantial changes in living arrangements which have taken place in recent times.

The difficulty of replacing a specific legal principle with one of a more general formulation has been highlighted above in the context of s.40 of the 2009 Act, which abolishes the rule in Wheeldon v Burrows [122] and replaces it with a general rule based on non-derogation from a grant. [123] There was much confusion surrounding the original rule, especially the requirement that the right at issue needed to be continuous and apparent. [124] However, the abolition of the rule renders the wealth of case law and commentary on the topic obsolete and as such, the courts and practitioners alike have virtually no guidance on the application of subs.(2). A reformulation of the original rule that clarified the uncertainties that had developed in its application would have been more favourable. [125]


JC

NoQuarter

Ah sure i wrote plenty on it anyways! The helpers were pulling my paper off me at the end

I think its very unprofessional and sloppy to have that on a paper, after all the effort candidates put in, surely its not too much to ask for an up to date question!!

pansoul

On the Succession problem question, isn't s.117(3) highly relevant given the husband got all her earthly belongings? -so there was nothing for the daughter to eat into (assuming the duty was failed and the will was valid).

I wasn't sure of that rule, and thought my memory was playing tricks, so I checked the Act during the exam and sure enough, s.117(3), says:

"An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy."

Now, I was a bit pressured during the exam, and currently have the language skills of a fatigued rhinoceros, so can anyone confirm I have interpreted that rule correctly?

RogerF

Hi

Can anyone sell me Tort Sample Papers, if I buy them of the law society I won't be able to eat.

NoQuarter

pansoul wrote: »

On the Succession problem question, isn't s.117(3) highly relevant given the husband got all her earthly belongings? -so there was nothing for the daughter to eat into (assuming the duty was failed and the will was valid).

I wasn't sure of that rule, and thought my memory was playing tricks, so I checked the Act during the exam and sure enough, s.117(3), says:

"An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy."

Now, I was a bit pressured during the exam, and currently have the language skills of a fatigued rhinoceros, so can anyone confirm I have interpreted that rule correctly?

Doesnt s117(3) only apply to a legal right share which would not be valid assuming the husband got all the belongings. I thought if he got all the belongings then the legal right share wouldnt kick in (only for intestacy) and therefore proper proovision still wasnt made for the daughter?

Hmm i dont know now!

NoQuarter

RogerF wrote: »

Hi

Can anyone sell me Tort Sample Papers, if I buy them of the law society I won't be able to eat.

How much does the Law Soc charge?

JCJCJC

pansoul wrote: »

On the Succession problem question, isn't s.117(3) highly relevant given the husband got all her earthly belongings? -so there was nothing for the daughter to eat into (assuming the duty was failed and the will was valid).

I wasn't sure of that rule, and thought my memory was playing tricks, so I checked the Act during the exam and sure enough, s.117(3), says:

"An order under this section shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy."

Now, I was a bit pressured during the exam, and currently have the language skills of a fatigued rhinoceros, so can anyone confirm I have interpreted that rule correctly?

Oh Sh*t! I'd say you are 100% right. That would make a much shorter question out of it. Where did it say Mike was Cheryl's father? ;-)

JC

Sarahaw

hi guys

Anyone selling;

TORT, PROPERTY, EU Manuals from griffith/independent Colleges 2010 versions.

Please PM me.

Cheers

pansoul

NoQuarter wrote: »

Doesnt s117(3) only apply to a legal right share

I assume "any devise or bequest" means it's wider than that. Not entirely sure.

JCJCJC wrote: »

Where did it say Mike was Cheryl's father? ;-)

Where did it say he wasn't?
Fair point though. His philandering tendencies would suggest he wasn't impotent anyway, so I suppose there's a fair chance he could procreate. As against that, his penchant for infidelity perhaps makes it more likely that he has not been with Monica for the over 20 years of Cheryl's life (she's finished university). That's the kinda ****e I'd comfort myself with in exams where I don't have a clue of the law, great craic.

JCJCJC

pansoul wrote: »

Where did it say he wasn't?

That's the kinda ****e I'd comfort myself with in exams where I don't have a clue of the law, great craic.

Where did it say Jack the solicitor wasn't? You could also read it that Monica was the one in University :P

Always on for craic. I was so jaded last night I only had two pints.

JC

law86

You could argue that the dog murdered her, therefore could not benefit. Can't believe I didn't think of that in the exam.