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A will is not an instrument the land office acts on to transmit title, and it is not a contract

A worked RES examination question on succession wills intestacy, from our Paper 1 bank — with the rule it turns on, and why each of the four options is right or wrong.

Paper 1Lesson 5Succession wills intestacyFree — no sign-up

The question

A beneficiary under a will is told by the executor's clerk that the will itself is "the document the land office acts on" to put the property into the beneficiary's name, and that a will works just like a signed contract between the deceased and those he names in it. Eager to have the property put into his own name as quickly as he can, the beneficiary repeats both remarks to his own lawyer and asks whether the clerk has the position right before he relies on any of it.

Which statement is correct?

  1. A. The second remark is right, but the will is the instrument; a will does bind like a contract.
  2. B. Both remarks are right: the will is the operative document and binds like a contract on those named.
  3. C. The first remark is right, but a will is not a contract; the land office does act on the will.
  4. D. Both remarks are wrong: a will is neither the instrument the land office acts on nor a contract.

The answer, and why

Answer: D

The rule. A will is not an instrument the land office acts on to transmit title, and it is not a contract. It is a statement of the testator's wishes. The instrument used to transmit title under a will is the Grant of Probate, once the will has been proved.

Why D is correct. Both of the clerk's remarks are wrong. The land office acts on the Grant of Probate, not on the will itself, and a will binds no one as a contract would.

The other options.

  • B accepts both remarks. Neither is right.
  • C accepts that the land office acts on the will. It acts on the Grant of Probate.
  • A accepts that a will binds like a contract. A will is not a contract.

Exam note. The will expresses wishes; the Grant of Probate is the operative instrument. Keep the two apart.

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