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Theobald on Wills (Trusts, Wills and Probate Library)

Theobald on Wills (Trusts, Wills and Probate Library)

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Description
The law of Wills is rather like one of those country houses that have been altered and enlarged over time. In the remains of a monastery, perhaps, a Tudor mansion was constructed. Then, in the eighteenth century, a fine new wing was built, in the style of Palladio. In the alternative, perhaps, the new wing was not built until the reign of Queen Victoria, and the style was not Palladian, but Gothic Revival. At this point, however, the analogy breaks down. The size and structure of the house will have changed little,
if at all, during the twentieth century. If the house had followed the example of the law of Wills, by contrast, if would have
seen extensive alteration, both internal and external. Picturesque cubby-holes and winding staircases would have been removed. Many rooms would have been redecorated in a new style. Modern knowledge would have improved the experience of living in the house, not least by opening new windows to let in more light (that is to say, extrinsic evidence). Above all, completely new buildings would have been added, attached to but to some degree separate from the older house. One would have been the family provision building, another the breach of duty building. These new buildings would have been used as much as any of the older parts of the house, and more than many of them. Readers of this book may well make most use of two classes of chapter. One class is made up of the modern, or relatively modern, subjects of family provision, breach of duty, proprietary estoppel and constructive trusts. The other class comprises those subjects that are of ancient origin, but are central to the law of Wills, come before the lawyer frequently, and continue to develop. The principles governing the formal and substantial validity of wills is the most important of these old but thriving subjects.
Much of the book covers subjects that do not fall into either of these two classes. Pre-eminent here is the material dealing with the meaning and effect of the language used in Wills, that is to say the construction of Wills. The chapters concerned with this may not be consulted as often as those in the two classes already mentioned. They will receive fewer "hits", in the language of the Internet. They are nevertheless very important, for at least three reasons. First, some lawyers are regularly concerned with problems of construction. Secondly, many others have to consider them from time to time. The plaintive requests for views on such problems in the Trusts Discussion Forum are evidence enough of that (and prompt our regret that the authors of the requests had not equipped themselves with a copy of Theobald). Thirdly, knowledge of problems and potential problems helps the drafter to understand why precedents use language in the way they do, and is very useful when he or she leaves the manicured lawns and clear paths of the printed precedents, to create by bespoke drafting the pathway required by the client.
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Contents
Section A: Introduction

1.  Wills and Other Testamentary Instruments
2.  Wills and Conflict of Laws
Section B: Making A Will
3.  Substantial Validity
4.  Formal Validity
5.  Incorporation of Documents
6.  Secret Trusts
7.  Alterations
8.  Revocation
9.  Revival and Republication
10.  What Property May be Disposed of by Will?
11.  The Equitable Doctrine of Election
12.  Who May be Devisees or Legatees?
13.  Provision for the Deceased's Family and Dependants
Section C: Understanding A Will
14.  Admissibility of Evidence as an Aid to Construction
15.  General Principles of Construction
16.  Alteration and Revoking Gifts
17.  Types of Legacy
18.  Gifts Over
19.  Testamentary Options
20.  Gifts of Annuities
21.  Gifts for Charitable Purposes
22.  Residuary Gifts and Partial Intestacy
23.  Description of Things
24.  Description of Beneficiaries: General
25.  Description of Beneficiaries: Relationships
26.  Description of Beneficiaries: Children
27.  Description of Beneficiaries: Class Gifts
28.  Descriptions of Interests
29.  Conditions
30.  Vesting
31.  Perpetuity and Accumulation
32.  Execution of Powers
Section D: Giving Effect To Wills
33.  Probate and its Effect
34.  Administration
35.  Administrative Powers of Trustees
36.  Rules Against Double Portions and Other Double Provision
37.  Ademption
38.  Income or Interest Carried by Gifts
39.  Rights Between Tenant for Life and Remainderman
Section E: Professional Negligence
40.  Professional Negligence
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Author Details
John G. Ross Martyn, M.A., LLM., A Bencher of Lincoln's Inn
Mika Oldham, M.A., Ph.D., University Lecturer and Fellow in Law Jesus College Cambridge
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