1+4. Validity of Wills and Intestacy

Question 1

Beneficial Joint Tenancy: One person dies, what happens to the beneficial interest?

Answer 1

The beneficial interest of the dying spouse passes by survivorship to the surviving joint tenants.

Question 2

How insurance policies pass according to the the Will + Intestacy Rules

Answer 2

General Rule: proceeds of policy paid to deceased’s PR’s to distribute money in accordance with these rules
Exception: Policies written to benefit certain individuals in trust

Question 3

How Pensions pass (Will + Intestacy Rules)

Answer 3

General Rule: Upon death of employee, pension paid by trustees of the pension fund to members of family or dependent chosen at trustees’ discretion
Exception: Certain pension schemes may provide that pension has to be paid to employee’s PR to be distributed in accordance with will

Question 4

What order will solicitors use when dealing with the deceased’s person’s assets after death:

Answer 4

1. Property passing outside of the will
2. Property passing under the will
3. Any property not disposed of in 1 or 2 passes on intestacy

Question 5

Can gifts be made to executors in the Will?

Answer 5

Yes

Question 6

DEF: Grant of Probate

Answer 6

Executors apply to HMCTS for a grant of probate which confirms that (1) the will is valid and (2) the executor has authority to act

Question 7

How do executors deal with ‘general gifts’ (esp if not owned by testator)

Answer 7

Ex. may obtain this gift with funds from the estate

Question 8

What if a fund has an insufficient balance to satisfy a demonstrative gift?

Answer 8

gift will be paid from the rest of the estate

Question 9

Three Requirements of a Valid Will

Answer 9

Wills Act 1837:
(1) Capacity
(2) Intention
(3) Formalities

Question 10

Test for capacity?

Answer 10

Banks v goodfellow (Soundness of Mind, memory and understanding)
testator must understand:
1. Nature of their act and its effects
2. extent of their property
3. claims they ought to consider (from persons which could potentially have claims), even if rejected
4. Testator should not suffer from a disorder of the mind

Question 11

When does the Banks v Goodfellow test apply?

Answer 11

At the time the will is executed

Question 12

What if someone is mentally incapable of making a will? Will they have one?

Answer 12

Yes, the Mental Capacity Act will have a will made on their behalf, Court of Protection will allow authorised person to execute the will and gives effect to it with the court seal

Question 13

What is the ‘golden rule’ wrt Capacity

Answer 13

A solicitor preparing a will for a testator whose mental state is in doubt should follow Kenward v Adams ‘golden rule’, ask medical practitioner to provide written report confirming testator has testamentary capacity and ask doctor to witness the will - and solicitor should record their own view in a file note

Question 14

Who has the burden of proof when asserting the testator had capacity?

Answer 14

The person asserting the will is valid must prove it

Question 15

What will give rise to the presumption of capacity

Answer 15

If the will is (1) rational on its face and (2) the testator showed no evidence of mental confusion prior to making it

Question 16

If someone wishes to challenge the testator’s capacity - who has the burden of proof?

Answer 16

The burden shifts to the person alleging this to prove a lack of capacity (harder to prove with Doctor’s reports and an experienced solicitor)

Question 17

Exception in Parker v Feldgate

Answer 17

a will can be valid if the testator has capacity when they give instructions even if they lose capacity by the time of execution - VERY NARROW APPLICATION

Question 18

General Rule: Intention

Answer 18

The testator must have general and specific intention at the point of signing (must intend to make a will and intend to make the particular will being executed)

Question 19

When does the presumption of knowledge and approval (intention) arise?

Answer 19

If the testator has capacity and has read and executed the will

Question 20

When does the presumption of knowledge and approval (intention) NOT arise?

Answer 20

(1) Testator blind / illiterate / not signing personally (evidence will be required here if trying to get the grant of probate)
(2) Suspicious Circumstances (ie. prepared by a beneficiary)

Question 21

General Rule: Undue Influence

Answer 21

Where a testator with capacity appears to have known and approved the contents of the will, any person who wishes to challenge the will (or any part of it) must prove one or more of the following to prevent some or all of the will from being admitted to probate:

1. Force or fear (through actual or threatened injury)
2. Fraud (eg. after being misled by some pretence)
3. Undue Influence (coercion or duress need to be proven): freedom of choice overcome by intolerable pressure, but judgement remained unconvinced
   
   1. Persuasion stopping short of coercion would not quality
4. Mistake: presumption will not apply if all or part of will was included by mistake, distinguish between actual mistake and misunderstanding as to the true legal meaning of words used in a will (latter case = words would not be omitted)

Question 22

Formalities of Will Execution

Answer 22

s 9 Wills Act 1837:
(1) Will is in writing, signed by testator (or some other person in his presence with his direction)
(2) testator intended his signature to give effect to the will
(3) Signature made / acknowledged in presence or two or more witnesses present at the same time
(4) Each witness either (i) attests and signs the will or (ii) acknowledges his signature in presence of testator

Question 23

Requirements for the ‘Presence’ of the witnesses

Answer 23

Must have physical AND mental presence (must be aware testator is signing a document and must see the signing) - acknowledgement also fine here

Question 24

Will any witness be acceptable?

Answer 24

If witness is beneficiary or spouse / civil partner of B, the will is valid but the gift to the witness or their spouse will FAIL

Question 25

Are there any exceptions to the s9 formalities?

Answer 25

Privileged Wills: those made on military service or by mariner or seaman at sea may be in any firm, including oral statements

Question 26

DEF: Attestation Clause

Answer 26

Clause stating s9 formalities were observed, gives rise to presumption of ‘due execution’

Question 27

What if a will does NOT have an attestation clause?

Answer 27

HMCTS requires an affidavit of due execution (or witness statement verified) from witness or any other person present at the time of execution or affidavit of handwriting evidence to identify testator’s signature

Question 28

Are attestation clauses always valid?

Answer 28

No, they are only valid if the formalities are actually complied with (eg. if the clause states the testator has signed but they end up getting someone else to sign for them)

Question 29

Three Situations where Intestacy Rules Arise

Answer 29

1. No will / all wills successfully revoked
2. Will exists but invalid or is valid but does not dispose of ANY of the estate
3. Partial Intestacy: will is valid but does not dispose of ALL of the estate

Question 30

Can the intestacy rules be excluded?

Answer 30

Likely no

Question 31

First step for PRs dealing with the property of an intestate:

Answer 31

(1) Property is under a statutory trust, PRs must first pay all funeral, testamentary and administration expenses (can sell assets from estate to do this)
(2) Balance remaining = residual estate

Question 32

Primary rule of distribution for an intestate’s estate

Answer 32

Primary beneficiary = surviving spouse, division of all other assets determined by relationships / surviving family members

Question 33

Distribution when there IS a surviving spouse / civil partner AND Issue

Answer 33

1. Spouse / civil partner gets personal chattels
2. Any jointly owned assets paid to spouse by operation of law
3. Spouse / civil partner gets statutory legacy fee (322 000)
4. Rest of residuary estate is divided in half
   - 1/2 held on trust for spouse absolutely
   - 1/2 held for the issue on statutory trusts

Question 34

DEF: Personal Chattels

Answer 34

tangible moveable property other than any property which:
1. consists of money or securities for money or
2. was used at the death of the intestate solely or mainly for business purposes or
3. was held at the death of the intestate solely as an investment

Question 35

Any requirements for the spouse to be eligible to inherit under the intestacy rules?

Answer 35

Must survive the intestate for 28 days (if they die before this, estate distributed as if they do not exist)

Question 36

Intestacy Rules: When there is a surviving Spouse / Civil Partner and NO ISSUE

Answer 36

Where the intestate leaves a surviving spouse or civil partner but no issue, the whole estate, however large, passes to the spouse or civil partner absolutely. Other relatives, such as parents, brothers and sisters, grandparents and cousins, are not entitled.

Question 37

Intestacy Rules: NO Spouse / Civil Partner

Answer 37

Residuary estate will be divided between relatives in the highest category in the list below:
(a) issue on the ‘statutory trusts’, but if none,
(b) parents, equally if both alive, but if none,
(c) brothers and sisters of the whole blood on the ‘statutory trusts’, but if none,
(d) brothers and sisters of the half blood on the ‘statutory trusts’, but if none,
(e) grandparents, equally if more than one, but if none,
(f) uncles and aunts of the whole blood on the ‘statutory trusts’, but if none,
(g) uncles and aunts of the half blood on the ‘statutory trusts’, but if none,
(h) the Crown, Duchy of Lancaster, or Duke of Cornwall (bona vacantia).

Question 38

DEF: Issue

Answer 38

all direct descendants of deceased, including adopted children and children born from wedlock, children of non-biology must have been adopted

Question 39

Intestacy: Family Home forms part of residuary estate and spouse wants it

Answer 39

(1) Surviving spouse can require PRs to give it to them in full/partial satisfaction of their interest (spouse must be living in the property)
(2) If property worth more than spousal entitlement, can ‘pay the difference’ to get the house
(3) must notify PRs in writing within 12 months of the grant of representation to exercise this right

Question 40

Conditions for residuary estate passing to the intestate’s issue on statutory trusts

Answer 40

(1) Primary B = children of intestate
(2) interests of children contingent on reaching 18 or marrying before then
(3) If any child died before intestate, their living children will take their share equally between them (+ great grandchildren etc.)

Question 41

What if the intestate is survived by NO relatives

Answer 41

estate passes to the Crown (government) or Duchy of Lancaster (if estate lived in Lancashire) or Duchy of Cornwall (if lived in Cornwall)

• Crown / Duchies have discretion to provide for dependants or anyone else the intestate might have been expected to make provision (ie. step child)
• Estate monies handed over to HM Treasury by Crown to be used as if taxes, Duchies pay money into funds for charitable purposes

Question 42

Intestacy Rules: Adopted children

Answer 42

any contingent interest which an adopted person had immediately before the adoption in the estate of a deceased natural parent is preserved