1. Validity of Wills and Intestacy Flashcards
What is joint property?
Property held by two or more as joint tenants.
What happens to joint property upon one’s death?
The interest passes to the surviving joint tenant through the doctrine of survivorship.
Does the doctrine of survivorship apply to tenants in common?
No, property held as tenants in common passes within the wills and intestacy rules.
Who does the benefit of a life assurance policy belong to?
The owner of the policy.
What happens to a life assurance policy upon one’s death?
The policy matures and the insurance company pays the proceeds to the deceased’s PR’s, who then distribute the money according to the will.
What happens if the deceased had put the insurance policy in a trust?
The policy no longer belongs to them, and the insurance company pays the proceeds to the beneficiaries of the trust, regardless of what their will may state.
Who is entitled to pension benefits if an employee dies ‘in service’?
The family members or dependants chosen by the trustee.
How is the one-off payment for pension benefits calculated?
Based on the deceased employee’s salary.
What is the role of a letter of wishes in relation to pension benefits?
It is not binding, but the deceased may have left one for the trustees.
Do pension benefits belong to an employee during their lifetime?
No, they do not.
Can PR’s distribute pension benefits according to the deceased’s will or through intestacy?
Only if stated in a scheme.
What happens to a deceased’s equitable interest in a trust upon their death?
If it is a life interest, it will come to an end.
How does trust property devolve upon the death of the deceased?
According to the terms of the trust, not the deceased’s will.
In what order does a solicitor deal with the deceased’s assets?
- Property passing outside the will, 2. Property passing under the will, 3. Any property not disposed of in (1) and (2) passing on intestacy.
What is a revocation clause in a will?
Revokes all prior wills so they have no effect.
What is the purpose of the direction as to disposal of the body in a will?
It has no legal effect.
What is the role of an executor in a will?
They deal with and administer the estate.
What are ‘legacies’ in a will?
Gifts of personality and realty.
What is a specific gift in a will?
A specific item that is distinguishable.
What is a general gift in a will?
An item or items with a description.
What is a demonstrative gift in a will?
General in nature but to be paid from a specific fund.
What is a pecuniary gift in a will?
A gift of money.
What is a residuary gift in a will?
All money and property left after debts and expenses have been paid.
What are the requirements for a valid will?
Capacity, intention, and meeting the formalities for execution.
What are the criteria for capacity in making a will?
Being aged 18 or over, having mental capacity, and understanding the nature of their act, extent of their property, and moral claims they ought to consider.
Is a will valid if the testator loses capacity after giving instructions but before execution?
Yes, as long as they had capacity when they instructed their solicitor for the will.
What happens if a testator loses capacity before execution of the will?
The will can still be valid if the solicitor who prepared it appreciates that they are signing a will prepared in accordance with previous instructions.
What is a statutory will?
A will made on behalf of a testator who is not capable of giving instructions, with the court’s permission and a solicitor appointed to execute it.
What does the court do to give effect to the will?
Affix the court seal.
What does the court consider when approving a draft will?
Testator’s best interests.
What is the ‘golden rule’ for solicitors?
Confirm testator’s capacity with medical report.
What should solicitors do if in doubt of testator’s capacity?
Ask for a medical report and witness the will.
What should solicitors do to protect themselves in case of a capacity challenge?
Keep written records on file.
Who has the burden of proof in proving the validity of a will?
Person asserting the will is valid.
What is the presumption of capacity?
Testator is presumed to have mental capacity.
When does the burden of proof shift to the challenger?
When the will is rational and the testator showed no evidence of lacking capacity.
What must the testator have in terms of intention?
General and specific intention to make the will.
What must the testator know and approve at the time of execution?
The contents of the will.
What is the general rule regarding burden of proof?
Person asserting the will is valid must prove it.
What is the presumption of knowledge and approval?
Testator is presumed to have the requisite knowledge and approval.
What evidence may be required if the testator is blind, illiterate, or not signing personally?
Evidence to prove knowledge and approval.
What can be included in the will to prove knowledge and approval?
A statement that the contents were read out and approved.
What are suspicious circumstances?
Circumstances surrounding the drafting and execution of the will.
What is the burden of proof in relation to a will?
Executor must prove testator’s knowledge and approval.
What are the grounds for challenging a will?
Force, fear, fraud, undue influence, and mistake.
What is the legal definition of undue influence?
Coercion or duress, not mere persuasion.
What must be proven in relation to undue influence?
Undue influence in relation to a will.
What happens if a claimant fails to substantiate their claim?
They will be penalized in costs.
What are the two types of mistake in relation to a will?
Actual mistake and misleading (legal meaning of words).
What are the formalities of execution for a will?
Must be in writing, signed, intended to give effect, and witnessed.
Is there a restriction on how a will should be written?
No, there is no restriction on how to write it or the type of wording.
What types of signatures are accepted for a will?
Any signature as long as the testator intends it to represent their name. Thumbprints can also be accepted.
Can someone sign a will on behalf of the testator?
Yes, if the testator directs them to sign on their behalf in their presence.
Is a signature alone enough to give effect to a will?
No, the testator must have the intention to sign and give effect to the will.
How many witnesses are required for a will?
Two witnesses.
What is the first stage of witnessing a will?
Testator’s signature must be made or acknowledged in the presence of two witnesses.
What is the second stage of witnessing a will?
The witnesses must sign the will in the presence of the testator.
What does ‘presence’ mean in the context of witnessing a will?
It covers both mental and physical presence.
What is remote witnessing?
Witnessing signatures through video/visual conference.
What is the time frame for remote witnessing for wills?
Between 31/01/2020 and 31/01/2024.
Who does remote witnessing apply to?
Testators who are able to sign themselves.
Is witnessing pre-recorded videos allowed?
No, it is not permitted.
Can the witnesses and testator be at different locations?
Yes, they can be on a three-way link or two can be physically together with one at a remote location.
Are electronic signatures allowed for remote witnessing?
No, electronic signatures are not permitted.
What should the testator do after signing the will?
The will must be taken or posted to the witnesses.
When should the witnesses sign the will?
The witnesses must physically sign the will in the virtual presence of the testator.
What date should the testator use when dating the will?
The date of signature.
What date should the witnesses use when signing the will?
The date on which they are signing, which may be different from the date the testator signed and the date the other witness signs.
What happens if the testator dies before all signatures have been added?
The will cannot take effect.
What are privileged wills?
Wills made on actual military service or by a mariner or seaman at sea, which may be in any form.
What is the requirement for privileged wills?
The testator intends to dispose of their property after death.
Who has the burden of proof in asserting a will?
The person asserting the will.
Is proof required for most wills?
No, there is a presumption of due execution.
When does the presumption of due execution arise?
If the will includes an attestation clause reciting that the formalities have been complied with.
What is an attestation clause?
A clause in the will that states the formalities have been complied with.
Who has the burden of proving the will was not validly executed?
Anyone challenging the validity of the will.
What is an example of an attestation clause?
‘Signed by the testatrix in our joint presence and then by us in hers’.
What is the burden of proof in most cases?
No proof is required due to the presumption of due execution.
What is an attestation clause?
A clause in a will that confirms the witnesses’ presence.
What is an affidavit of due execution?
A sworn statement confirming the proper execution of a will.