1. Execution 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 (executes it)

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 executing 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

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 26

At the date of death

Question 27

As of when are the beneficiaries in a will determined?

Answer 27

The date of execution, subject to class closing rules

Question 28

What is a legacy and what is a devise?

Answer 28

A legacy is a gift of personal property.

A devise is a gift of real property.

Question 29

What is a specific legacy?

Answer 29

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

Question 30

What is a general legacy?

Answer 30

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

Question 31

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

Answer 31

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

Question 32

What is a pecuniary legacy?

Answer 32

A gift of cash

Question 33

What is a demonstrative legacy?

Answer 33

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

Question 34

What is a residuary legacy?

Answer 34

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

Question 35

What are the two ways gifts can fail?

Answer 35

1. Ademption
2. Lapse

Question 36

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

Answer 36

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 37

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

Answer 37

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 38

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 38

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 39

When will a gift fail by lapse?

Answer 39

If the beneficiary predeceases the testator

Question 40

What will prevent a gift from failing by lapse?

Answer 40

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

Question 41

What happens where there is no substitutional gift?

Answer 41

The gift falls into the residue

Question 42

What happens if a residual gift lapses?

Answer 42

It passes under the rules of intestacy

Question 43

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

Answer 43

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 44

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

Answer 44

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 45

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

Answer 45

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 46

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 46

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 47

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 47

No, just the gift to the beneficiary witness fails

Question 48

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

Answer 48

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 49

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

Answer 49

Applies to:

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

But not stepchildren, unless adopted.

Question 50

When will a class normally close?

Answer 50

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

Question 51

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

Answer 51

Yes as long as they are living when the class closes

Question 52

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

Answer 52

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 53

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

Answer 53

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 54

How can the class closing rules be excluded?

Answer 54

By an express provision in the will

Question 55

What are the exceptions to the age 18 rule for making wills

Answer 55

1. Married minors
2. Those in military service

Question 56

What is the rule in banks v good fellow

Answer 56

Must understand the broad nature of the act and its effects
Appreciate the general extent of the property they’re disposing of
Understand the moral claims they ought to give effect to; have no disorder of the mind