1. Validity of wills and intestacy

Question 1

What types of property passes outside the will or intestacy rules?

Answer 1

• Joint property
• Insurance policies put in trust for the benefit of specific individuals
• Pension benefits
• Trust property

Question 2

What are the 3 requirements for a valid will?

Answer 2

1. Capacity
2. Intention
3. Formalities

Question 3

What is the test for mental capacity from Banks v Goodfellow?

Answer 3

Soundness of mind, memory and understanding

1. Understand their act and that it will have the effect of carrying out his wishes on death
2. Understand extent of their property (not necessarily every item)
3. Recall those who have claims on him and understand the nature of those claims so that he can both include and exclude beneficiaries from the will

ALSO Not suffering any disorder of the mind

Question 4

What is the golden rule from Kenward v Adams regarding capacity?

Answer 4

No capacity means there is a void will

Question 5

What is the exception regarding capacity from Parker v Felgate?

Answer 5

A will can be valid if testator has capacity when they give instruction for their will, even if capacity is lost by the time the will is executed (if instructions for will is given to solicitor)

Question 6

What is the burden of proof regarding capacity, and what underlies this?

Answer 6

Person asserting the validity of the will must prove it

However, presumption of capacity underlies this so therefore capacity is assumed if the will is rational on its face and the testator showed no evidence of mental confusion

Question 7

What is the general rule regarding intention?

Answer 7

Testator must have intended to make the will AND must intend that specific will

Question 8

What is the relevant presumption regarding intention?

Answer 8

If the testator has capacity, there is a presumption of knowledge and approval of the will

Question 9

When is the presumption of knowledge and approval of the will if the testator has capacity not relevant?

Answer 9

1. Testator is blind/ illiterate/ not signing personally
2. There are suspicious circumstances

Question 10

Where a testator appears to have known and approved the contents of the will, what must someone challenging the will prove?

Answer 10

Prove one or more of either:
1. Force or fear - through actual or threatened injury
2. Fraud - after being misled by some pretence
3. Undue influence - where testator’s freedom of choice was overcome by intolerable pressure, but their judgement remained unconvinced
4. Mistake - presumption of knowledge or approval does not apply if all or part of the will was included by mistake

Question 11

For undue influence, what is the starting presumption and what is the applicable test?

Answer 11

There is no starting presumption
The challenger must prove coercion rather than persuasion

Question 12

What happens if the challenger fails to prove their claim of undue influence?

Answer 12

They will be penalised in costs

Question 13

What are the s 9 formality requirements for a valid will?

Answer 13

1. In writing and signed by testator, or person in presence by their direction
2. Signature intended to give effect
3. 2 or more witnesses (both present at time of signing by testator)
4. Each witness either
   - Attests and sign the will; or
   - Acknowledge their signature, in the presence of the testators, but not necessarily in the presence of any other witness

Question 14

When does the presumption of due execution arise?

Answer 14

If the will includes an attestation clause

Question 15

If the will does not include an attestation clause, how can due execution be proved?

Answer 15

By an affidavit of due execution from a witness or another person present

Question 16

Who has the burden of proof in challenging due execution?

Answer 16

The challenger

Question 17

If an attestation clause identifies the will being signed by the testator, but when it is actually signed it is done on their behalf, what is the effect?

Answer 17

No presumption of due execution is provided by the attestation clause as it didn’t account for the circumstances

Question 18

What is the statutory trust?

Answer 18

A trust imposed over all property imposed by intestacy rules when a person dies intestate

Provides that PRs must pay the funeral, testamentary and administration expenses, and any legal expenses and debts of the deceased

Question 19

What are the rules regarding using appropriation of assets from the estate for a beneficiary’s share?

Answer 19

Can appropriate in order to satisfy beneficiary’s share

Question 20

Who are “issues” under intestacy rules?

Answer 20

All direct descendants (excluding step children unless adopted)

Question 21

What is the spouse / civil partner’s entitlement under intestacy?

Answer 21

All personal chattels absolutely

Statutory legacy of £322,000 free of tax and costs plus interest from death until payment

Half of remaining legacy (other half going to issue)

Question 22

If there is no “issue”, but there is a surviving spouse or civil partner, how do the rules of intestacy work?

Answer 22

Whole estate passes to spouse / civil partner

They must survive the deceased for 28 days

Question 23

If there is a valid will, does a spouse need to survive 28 days?

Answer 23

No

Question 24

Do any other beneficiaries in intestate need to survive 28 days?

Answer 24

No

Question 25

If there is no surviving spouse / civil partner, what is the order of entitlement?

Answer 25

1. Issues
2. Parents, equally if both alive
3. Brothers and sisters of the whole blood
4. Brothers and sisters of the half blood
5. Grandparents
6. Uncles and aunts of the whole blood
7. Uncles and aunts of the half blood
8. Crown, Duchy of Lancaster (if lived in Lancashire), or Duke of Cornwall (if the intestate lived in Cornwall) (bona vacantia)

Question 26

What are the requirements for an issue to take a vested interest in the statutory trust?

Answer 26

Reach 18 OR marry or form a civil partnership

Otherwise, contingent interest