1. Execution, Alteration, Amendment, Revocation and Interpretation of Wills

Question 1

What two things must a person have and what one thing must they do to make a will?

Answer 1

Have:

1. Capacity at the time the will was made, and
2. Intention to make a will

and

Execute the will in accordance with the required formalities.

Question 2

Other than privileged wills made by armed forces, what is the minimum age to make a will?

Answer 2

18

Question 3

Who has the burden of proving a testator did not have mental capacity, and what is the statutory test for this?

Answer 3

The person alleging the testator lacked capacity must show at the material time, the person is unable to make a decision for themselves because of an impairment or disturbance in functioning of the mind

Question 4

What is the statutory test a reiteration of and what three things did this require the testator to understand at the time of execution?

Answer 4

The common law test, which required the testator to understand:

1. The nature of the act of making a will
2. The extent of their property, and
3. The claims which they ought to give effect to even if they subsequently do not

Question 5

In most cases, when is the material time?

Answer 5

When the testator signs the will

Question 6

What is the exception to the rule that the material time is when the testator signs the will?

Answer 6

If the testator did not have mental capacity at execution, but did when giving instructions to the drafter, the testator will be deemed to have acted with capacity if:

1. The will was prepared in accordance with the instructions, and
2. At execution, the testator at least understood they were signing a will for which instructions had previously been given

Question 7

What two things are required to satisfy the intention to make a will?

Answer 7

Testator must have:

1. General intent to make a will, and
2. Specific intent to make that particular will, i.e. they knew and approved of the contents

Question 8

Who has the burden of showing the testator did not have intention, and how might they show this?

Answer 8

The person challenging their intention, and they may do so by showing the testator acted due to fear, fraud, undue influence, or mistake

Question 9

In what three circumstances does the presumption that if the testator acted with capacity, they had specific intent not apply?

Answer 9

1. Testator is blind or illiterate
2. Will is signed on testator’s behalf
3. Suspicious circumstances where the will drafter substantially benefits from the will

Question 10

What is required for a gift in the third situation, suspicious circumstances where will drafter benefits, for the gift to not fail?

Answer 10

Evidence of testator’s specific intent must be put forward by the person claiming the gift

Question 11

What is required for a will that has been made under duress, i.e. as a result of force and fear, to be valid?

Answer 11

Court must pronounce that it is valid, and issue a grant in solemn form

Question 12

What can occur where an omission from a will is made under duress?

Answer 12

The disappointed beneficiary can be entitled to the gift on the basis of the earlier will.

Duress is deemed to invalidate the revocation and the new will is read in line with that earlier valid provision.

Question 13

What must anyone alleging undue influence show?

Answer 13

More than mere persuasion, which rose to the level of coercion or pressure that overpowered the freedom of action of the testator

Question 14

What are the three formalities for a valid will?

Answer 14

1. In writing
2. Signed by the testator (or some person in T’s presence and at T’s direction such that it is clear T intended to give effect to the will)
3. Signed by two witnesses each in the presence of the testator, but not necessarily in each other’s presence (or their previous signature is acknowledged in T’s presence)

Question 15

What is an attestation clause and what is required if one is missing?

Answer 15

A signed clause confirming the formalities have been met. If one is not provided, the proponent of the will (i.e. the person offering it into probate) must provide proof these formalities were followed

Question 16

In what situation is a special attestation clause required, and what must it show?

Answer 16

A special attestation clause is required where the testator is illiterate, and it must show that the will was read to T and he understood and approved the contents, i.e. he had the specific intent to make that particular will

Question 17

What is required of a signature?

Answer 17

Any mark, as long as it shows the testator’s intention to give effect to the will

Question 18

Where must a signature be placed?

Answer 18

It can be anywhere

Question 19

In a situation where someone signs the will on the testator’s behalf, is the will invalid if this person is also a witness?

Answer 19

No

Question 20

What are the two requirements where someone signs the will on the testator’s behalf?

Answer 20

1. Testator must be present when signature is made
2. Testator must indicate to the witness that the signature has been put there at his request

Question 21

Although there are no formal requirements of a witness, what must they be able to do?

Answer 21

Generally understand the significance of being a witness to a signature of a will

Question 22

Do the witnesses need to see the contents of the will?

Answer 22

No

Question 23

Does the witnesses need to know that the testator is signing a will?

Answer 23

No

Question 24

Why can a blind person not be a witness to a will?

Answer 24

Because they are unable to witness the visible act

Question 25

Whilst a mentally unsound person may not witness a signature when they are mentally unsound, what will not invalidate a will?

Answer 25

A person who witnesses a signature when they have capacity, who later loses capacity

Question 26

For a document to be incorporated by reference into a will, what two requirements must be met?

Answer 26

1. Document must exist at the date of the will
2. Document must be referred to in the will

Question 27

Therefore, references to what documents will not be incorporated into a will?

Answer 27

Documents expressed to be created after the fact, e.g. lists of items, or subsequent references in diaries

Question 28

On to Alteration, Amendment, and Revocation:

When will a general alteration be valid?

Answer 28

If it can be proved it was made before execution, provided that the will reads naturally

Question 29

What is the situation where a will has words crossed out and it can’t be proved that the alteration occurred before execution or that it was made with the same formalities as the will, i.e. writing signed and witnessed?

Answer 29

The original gift applies

Question 30

What is the presumption given to unattested alterations?

Answer 30

They are presumed to have been made after execution, unless merely filling in a blank space in a will form

Question 31

What is the effect of an alteration making the original gift illegible?

Answer 31

This is an obliteration and the original gift fails completely

Question 32

What is a codicil?

Answer 32

Brief document that adds to, amends, or partially revokes an existing will

Can be used to remedy a gift which was void because the beneficiary witnessed the will

Question 33

What are the three requirements of a codicil?

Answer 33

1. Must make reference to the will
2. Must satisfy the formalities of a will, e.g. writing signed and witnessed
3. Clause should be included confirming the unamended part of the will

Question 34

What are the two ways a revocation of a will can occur?

Answer 34

1. By law
2. Deliberate act of the testator

Question 35

What are the two situations in which a will is revoked by law?

Answer 35

1. Marriage/civil partnership
2. Divorce, nullity, or dissolution

Question 36

What is the effect of a testator marrying after executing a will?

Answer 36

The will is revoked unless it appears, from the will, that the testator was expecting to marry a particular person and they intended that all or part of the will should not be revoked by that marriage

Question 37

What is the effect of divorce, nullity, or dissolution on a will?

Answer 37

Will is partly revoked as to the appointments/gifts to the former spouse/civil partner as they are treated as having died on the date of divorce/dissolution

The remainder of the will is valid

Question 38

What gift provisions in a will will be relevant upon divorce/dissolution, and why?

Answer 38

Substitutional gifts conditional upon the spouse/civil partner predeceasing the testator, because they are deemed to have done so

Question 39

What is required to exempt a will from these divorce/dissolution rules?

Answer 39

Contrary intention expressed in the will

Question 40

What are the two ways a testator can revoke a will through deliberate act?

Answer 40

1. Executing a later will/codicil
2. Destruction

Question 41

In addition to a later will/codicil, what also satisfies this revocation option?

Answer 41

Any writing declaring an intention to revoke the will, and executed with the same formalities (I won’t repeat them again)

Question 42

What is the extent to which a later will/codicil will revoke an earlier will?

Answer 42

Only to the extent that it is inconsistent with or merely repeats the terms of the earlier will

Question 43

How is a will revoked by destruction?

Answer 43

Burning, tearing, or otherwise destroying the will by the testator (or someone at T’s direction and in their presence) with the intention of revoking the will

Question 44

Put simply therefore, what is required for a will to be revoked by destruction?

Answer 44

Intention to revoke

Question 45

What is the situation if only part of a will is destroyed?

Answer 45

Whether or not the will is fully revoked, or only revoked to the extent of the part that was destroyed will depend on the importance of the part which was destroyed, e.g. the signature page being destroyed will revoke the entire will if intent to revoke is evident

Question 46

Regarding intention to revoke, what is the presumption if a will is found mutilated at the date of death?

Answer 46

It is rebuttably presumed to have been revoked with the testator’s intent

Question 47

What is the other situation where a will is rebuttably presumed to have been revoked?

Answer 47

Where a will was last known to be in the testator’s possession, but cannot be found at the date of death

Question 48

How does the court-applied doctrine of dependent relative revocation save a will?

Answer 48

If the testator’s intention to revoke the will was conditional on a future event, and the event did not take place, the original will, even if destroyed, may be valid if it can be reconstructed

Question 49

What are mutual wills?

Answer 49

Where two or more people make wills with the same clauses conferring reciprocal benefits, further to an agreement between them to make such wills and not revoke them without the consent of the other

Question 50

What is the effect of a mutual will conferring a constructive trust in favour of the other party?

Answer 50

If one testator dies, and the other changes their will, a beneficiary harmed by this can apply to court for an order that the recipient of the changed gift transfers it to the original beneficiary

Question 51

On to Interpretation of Wills:

Except for as to beneficiaries and subject to a contrary intention, a gift in a will will take effect as if the will was executed when?

Answer 51

At the date of death

Question 52

As of when are the beneficiaries in a will determined?

Answer 52

The date of execution, subject to class closing rules

Question 53

What is a legacy and what is a devise?

Answer 53

A legacy is a gift of personal property.

A devise is a gift of real property.

Question 54

What is a specific legacy?

Answer 54

A gift of a specified part of the estate, e.g my BMW car with registration ABC1234

Question 55

What is a general legacy?

Answer 55

A gift of a generic item which does not identify a particular item, e.g. a BMW car

Question 56

What occurs if the item described in the general legacy is not in the estate?

Answer 56

The beneficiary can require the executors to purchase the item if there is sufficient funds

Question 57

What is a pecuniary legacy?

Answer 57

A gift of cash

Question 58

What is a demonstrative legacy?

Answer 58

A general or pecuniary legacy which identifies the source from which the gift is to be made

Question 59

What is a residuary legacy?

Answer 59

Everything left in the estate after costs of administration, liabilities, and gifts

Question 60

What are the two ways gifts can fail?

Answer 60

1. Ademption
2. Lapse

Question 61

Under the doctrine of ademption, in what three situations will a specific gift adeem?

Answer 61

1. No longer part of the testator’s estate
2. Subject to a binding contract for sale
3. No longer meets the description in the will

Does not apply to general legacies

Question 62

Whilst a change in the substance of the subject matter will cause a gift to adeem, what will not?

Answer 62

A mere change in name or form

Example:

• Shares in ABC plc which change in form due to a corporate restructuring but the shares are still in ABC plc: gift does not adeem
• Shares in ABC plc which goes into liquidation and is taken over by XYZ plc, and shareholders receive new shares in XYZ plc: gift adeems as the substance is different

Question 63

Although the law generally speaks from the date of death when it comes to gifts, what is the one specific and testable exception to this, and what is the effect of this?

Answer 63

If the testator gives a gift of my car, the courts will presume this to mean the car the testator had on execution of the will and therefore treat it as a specific legacy. If this specific car is not in the estate on death, the gift adeems.

This is avoided by use of the words the car I own on my death

Question 64

When will a gift fail by lapse?

Answer 64

If the beneficiary predeceases the testator

Question 65

What will prevent a gift from failing by lapse?

Answer 65

A substitutional gift in the will accounting for the situation where the beneficiary predeceased the testator

Question 66

What happens where there is no substitutional gift?

Answer 66

The gift falls into the residue

Question 67

What happens if a residual gift lapses?

Answer 67

It passes under the rules of intestacy

Question 68

Regarding objects, i.e. people, what is the exception to the general rule that the will is construed at the date of death?

Answer 68

Will is construed at date of execution, as to objects, e.g.:

A gift of “all my shares in ABC plc to the eldest son of John” is a gift of however many shares the testator had at the date of death to whoever the eldest son of John was at the date of execution

Question 69

Where a gift is to two or more people as joint tenants, i.e. jointly, what is required for the gift to lapse?

Answer 69

All joint tenants must predecease the testator. If not, the gift passes to the surviving tenants in proportionate shares.

This does not apply where a gift is simply split and given in equal shares. It has to be joint. Think right of survivorship

Question 70

In what situation would the law of commorientes be applied, and what does it provide?

Answer 70

In a situation where parties die at the same time and it is impossible to determine who died first, e.g. car crash, the law of commorientes provides that, for succession purposes, the younger person survives the elder

Question 71

What is the special rule where a gift is made to a testator’s child or other lineal descendant, e.g. grandchild, and the beneficiary child or descendant predeceases the testator?

Answer 71

The gift will pass to the issue of the beneficiary if they are living, and unless a contrary intention is shown, it will occur per stirpes.

Note this only applies where a testator gives a gift to their issue or lineal descendant who:

(1) Predeceases the testator and
(2) Leaves living issue of their own.

It does not apply to gifts to parties who aren’t issue or lineal descendants.

Question 72

A gift to a beneficiary will fail if the beneficiary or their spouse/civil partner witness the will. Does this invalidate the entire will?

Answer 72

No, just the gift to the beneficiary witness fails

Question 73

In what situation will a gift to a beneficiary not fail where that beneficiary witnesses the will, and why?

Answer 73

Where there are at least two other witnesses who are not beneficiaries or spouse/civil partner, because the formal requirement that a will have two witnesses will be satisfied irrespective of the beneficiary acting as a subsequent witness

Question 74

What three groups does a gift to children apply to, and what one does it not?

Answer 74

Applies to:

1. Legitimate children
2. Illegitimate children
3. Adopted children

But not stepchildren, unless adopted.

Question 75

When will a class normally close?

Answer 75

When at least one beneficiary has a vested interest, to the exclusion of any potential beneficiary not then living

Question 76

If a class closes, do beneficiaries who have not satisfied their contingency still qualify?

Answer 76

Yes as long as they are living when the class closes

Question 77

Why does the inclusion of the word each of change the effect of the class closing rules?

Answer 77

The class closing rules operate to close a class off so that the pool of assets can be divided up among vested and contingent holders, and of course paid to vested beneficiaries immediately. E.g. “£5,000 to the children of John” requires those beneficiaries to be determined to know how many ways to divide the total pool of £5,000.

Whereas, “£5,000 to each of the children of John” does not require the class to close at all to determine how much each will receive. Each will receive the £5,000.

Question 78

However, in the absence of a provision to the contrary, where each of is used, when does the class close?

Answer 78

At the testator’s death, and if there are no class members eligible, the gift will fail and not continue until the at least one class member is eligible

Question 79

How can the class closing rules be excluded?

Answer 79

By an express provision in the will