1+4. Validity of Wills and Intestacy Flashcards
Chapter 1+4 of Textbook
Beneficial Joint Tenancy: One person dies, what happens to the beneficial interest?
The beneficial interest of the dying spouse passes by survivorship to the surviving joint tenants.
How insurance policies pass according to the the Will + Intestacy Rules
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
How Pensions pass (Will + Intestacy Rules)
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
What order will solicitors use when dealing with the deceased’s person’s assets after death:
- Property passing outside of the will
- Property passing under the will
- Any property not disposed of in 1 or 2 passes on intestacy
Can gifts be made to executors in the Will?
Yes
DEF: Grant of Probate
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
How do executors deal with ‘general gifts’ (esp if not owned by testator)
Ex. may obtain this gift with funds from the estate
What if a fund has an insufficient balance to satisfy a demonstrative gift?
gift will be paid from the rest of the estate
Three Requirements of a Valid Will
Wills Act 1837:
(1) Capacity
(2) Intention
(3) Formalities
Test for capacity?
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
When does the Banks v Goodfellow test apply?
At the time the will is executed
What if someone is mentally incapable of making a will? Will they have one?
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
What is the ‘golden rule’ wrt Capacity
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
Who has the burden of proof when asserting the testator had capacity?
The person asserting the will is valid must prove it
What will give rise to the presumption of capacity
If the will is (1) rational on its face and (2) the testator showed no evidence of mental confusion prior to making it
If someone wishes to challenge the testator’s capacity - who has the burden of proof?
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)
Exception in Parker v Feldgate
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
General Rule: Intention
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)
When does the presumption of knowledge and approval (intention) arise?
If the testator has capacity and has read and executed the will
When does the presumption of knowledge and approval (intention) NOT arise?
(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)
General Rule: Undue Influence
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:
- Force or fear (through actual or threatened injury)
- Fraud (eg. after being misled by some pretence)
- Undue Influence (coercion or duress need to be proven): freedom of choice overcome by intolerable pressure, but judgement remained unconvinced
- Persuasion stopping short of coercion would not quality
- 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)
Formalities of Will Execution
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
Requirements for the ‘Presence’ of the witnesses
Must have physical AND mental presence (must be aware testator is signing a document and must see the signing) - acknowledgement also fine here
Will any witness be acceptable?
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
Are there any exceptions to the s9 formalities?
Privileged Wills: those made on military service or by mariner or seaman at sea may be in any firm, including oral statements
DEF: Attestation Clause
Clause stating s9 formalities were observed, gives rise to presumption of ‘due execution’
What if a will does NOT have an attestation clause?
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
Are attestation clauses always valid?
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)
Three Situations where Intestacy Rules Arise
- No will / all wills successfully revoked
- Will exists but invalid or is valid but does not dispose of ANY of the estate
- Partial Intestacy: will is valid but does not dispose of ALL of the estate
Can the intestacy rules be excluded?
Likely no
First step for PRs dealing with the property of an intestate:
(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
Primary rule of distribution for an intestate’s estate
Primary beneficiary = surviving spouse, division of all other assets determined by relationships / surviving family members
Distribution when there IS a surviving spouse / civil partner AND Issue
- Spouse / civil partner gets personal chattels
- Any jointly owned assets paid to spouse by operation of law
- Spouse / civil partner gets statutory legacy fee (322 000)
- 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
DEF: Personal Chattels
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
Any requirements for the spouse to be eligible to inherit under the intestacy rules?
Must survive the intestate for 28 days (if they die before this, estate distributed as if they do not exist)
Intestacy Rules: When there is a surviving Spouse / Civil Partner and NO ISSUE
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.
Intestacy Rules: NO Spouse / Civil Partner
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).
DEF: Issue
all direct descendants of deceased, including adopted children and children born from wedlock, children of non-biology must have been adopted
Intestacy: Family Home forms part of residuary estate and spouse wants it
(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
Conditions for residuary estate passing to the intestate’s issue on statutory trusts
(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.)
What if the intestate is survived by NO relatives
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
Intestacy Rules: Adopted children
any contingent interest which an adopted person had immediately before the adoption in the estate of a deceased natural parent is preserved
Difference between mutual wills and mirror wills
Mirror Wills: wills on identical terms, which can be revoked and changed once one party dies
Mutual Wills: wills made as a result of a clear agreement between the testators as to the disposal of their estates and part of that agreement is that the survivor will not revoke their will (or will leave their estate in a particular way)
Mutual Wills: Effect of the first testator dying
A constructive trust is created over the assets of the other testator
- but ultimately, the surviving testator could try to dilute their property
- the doctrine of mutual wills states that the survivor cannot make dispositions with the intention of defeating the mutual will
