2 - Wills: Drafting and Interpretation & IPFDA 1975 Flashcards
What are the key requirements for a will to be considered valid?
The testator must be at least 18 years old (s 7 Wills Act 1837), except for those in military service.
Testamentary Capacity: The testator must have testamentary capacity, they must understand the nature of the act (signing a will), appreciate the extent of their estate, understand moral claims on their estate, and not be suffering from a disorder of the mind that affects their ability to dispose of property by will (Banks v Goodfellow).
The testator must have knowledge and approval.
Form and Formalities: The will must be executed in accordance with the formal requirements set out in the Wills Act 1837, which includes being in writing, signed by the testator, and witnessed by two individuals who are present at the same time.
What is testamentary capacity and how is it determined?
Testamentary capacity refers to the mental ability of a testator to make a will.
Requirements (Banks v Goodfellow):
- Understanding of the Act: The testator must understand that they are signing a document that will dispose of their property upon death.
- Appreciation of Property: The testator must have a general awareness of their property and its approximate value.
- Moral Claims: The testator should recognise the moral claims of those who should be considered for inclusion in the will.
- No Disorder of Mind: The testator should not be affected by mental disorders that impair their ability to make decisions about the disposition of their estate.
What are the timing requirements for testamentary capacity?
The testator must have testamentary capacity at the time the will is executed.
Exception (Parker v Felgate): A will can be valid even if the testator lacks capacity at the time of execution if:
- They had capacity when they gave instructions for the will.
- The will was prepared according to those instructions.
- At the time of execution, the testator understood that they were signing a will for which they had previously given instructions.
How is fluctuating capacity addressed in will validity?
Intermittent Capacity: A testator may experience fluctuating capacity due to illness or other conditions, such as dementia, where they may have lucid periods.
Assessment: Each instance of will-making must be assessed for capacity at the time of execution, taking into account the testator’s fluctuating mental state.
Example (Key v Key): A testator’s capacity may be affected by grief or other temporary conditions, impacting their ability to make a will.
What is the “golden rule” in relation to testamentary capacity?
Rule: Instruct a medical practitioner to assess the testator’s capacity when taking instructions from elderly or seriously ill clients.
Purpose: This rule is not legally mandatory but is considered best practice to help reduce disputes regarding testamentary capacity.
Contemporaneous Record: The assessment and conclusions should be documented.
Limitations: Failing to follow this rule does not automatically constitute poor practice, as practical difficulties may arise.
What is the presumption of capacity regarding wills and who does the burden of proof lie with?
Burden of Proof: The person propounding the will (usually the executor) must prove the testator had capacity.
Presumption: If the will appears rational and has been duly executed, capacity is presumed.
Challenge: Anyone challenging the will must provide sufficient evidence to raise doubt. If doubt is raised, the burden shifts to the propounder to prove capacity.
How does the Mental Capacity Act 2005 relate to testamentary capacity?
Statutory Test: The Act provides a general test of decision-making capacity.
Relationship to Common Law: The statutory test complements the common law test for testamentary capacity as set out in Banks v Goodfellow.
Prevalence: The common law test remains applicable, and if the statutory and common law tests produce different outcomes, the common law test prevails.
What are statutory wills and when can they be used?
A statutory will is a will made on behalf of an individual who lacks testamentary capacity.
Authority: The court can authorise the execution of a will under s.18(1) MCA 2005 if it is in the person’s best interests.
Grounds: Statutory wills may be used when a person has never made a will, or to address changes in circumstances that necessitate revising the existing testamentary position.
What is required for knowledge and approval of a will?
- The testator must have a general intention to create a will disposing of their property and understand that it will take effect upon their death.
- They must also have specific knowledge of the contents and approve them, meaning they must understand and intend the choices made.
- The testator should read the will and understand it, and by signing it, they intend to give effect to its terms.
- Knowledge and approval must be present at execution, unless the Parker v Felgate exception applies.
How is knowledge and approval presumed?
If the testator had testamentary capacity, knowledge and approval are presumed by the court.
If there is evidence casting doubt, this presumption is rebutted, and the burden shifts to prove the testator had knowledge and approval.
When does the presumption of knowledge and approval not apply?
The presumption does not apply if the testator:
- Is blind or illiterate.
- The will was signed on the testator’s behalf.
- There are suspicious circumstances (e.g., prepared by a key beneficiary).
In these cases, an affidavit of knowledge and approval may be necessary.
What is an affidavit of knowledge and approval?
- An affidavit may be required if the presumption of knowledge and approval does not apply and the attestation clause, which explains the circumstances under which the will was executed, doesn’t cover it.
- The affidavit helps prove the testator knew and approved the will’s contents.
Steps to mitigate future challenges include drafting the attestation clause to reflect any extra efforts taken to ensure the testator fully understood the document (e.g., having the will read or translated).
What are undue influence and duress?
Undue influence - when the testator is coerced into making a will or including specific terms against their judgment and intention.
Duress - external pressure that forces the testator’s hand, making the will not reflect their true wishes.
If undue influence or duress affected the entire will, the will is invalid. If it affects only part, the rest of the will may still stand, provided the omissions don’t disrupt the overall testamentary plan.
What is undue influence in relation to wills?
Definition: Coercion or pressure that forces the testator to act against their true intentions.
Persuasion vs. Coercion: Convincing the testator is allowed if their judgment remains intact, but coercion overcomes their free will.
Burden of Proof: The party alleging undue influence must provide evidence. It must be proven that no other explanation for the facts exists.
Physical and Mental Strength: A weaker testator may be more vulnerable to undue influence, especially when seeking peace or quiet.
No Presumption: Unlike lifetime arrangements, there is no automatic presumption of undue influence for wills.
Whether or not the court considers the testator’s will to be fair is irrelevant. The question is whether, in executing the will, the testator acted “as a free agent”.
What are the formal requirements for a valid will under Section 9 Wills Act 1837?
To be valid a will must comply with s 9 Wills Act 1837 (‘WA’) which states:
No will shall be valid unless—
(a) It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) Each witness either
(i) Attests and signs the will; or
(ii) Acknowledges his signature,
In the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
(a) It is in writing, - Includes handwritten and typed/printed text in any language
and signed by the testator, - Any ‘mark’ may constitute a ‘signature’ if the testator intends it to be, but it is preferable for a testator to use their normal signature to avoid doubt
or by some other person in his presence and by his direction - This could apply e.g. if a testator is physically unable to sign themselves and authorises another person to sign on their behalf
b) It appears that the testator intended by his signature to give effect to the will - Where the signature is at the end of a will it usually indicates the necessary intention. Signatures at the beginning or in the middle of the will can be problematic.
(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time - A testator either signs in person or acknowledges the signature of the person who signed on their behalf. Two is the minimum - there is no maximum.
What constitutes a ‘signature’ under Section 9 Wills Act 1837?
- A mark (even if it’s not the testator’s usual signature) may count as a signature, as long as the testator intends it to be one.
- The testator’s normal signature is preferable to avoid doubt.
- If a testator is physically unable to sign, another person can sign on their behalf, in their presence and with their direction.
What are the requirements for witnesses under Section 9 Wills Act 1837?
- Two witnesses are required, though there is no maximum number.
- Witnesses must be physically and mentally present but do not need to know the document is a will or its contents.
- Inappropriate witnesses: minors, blind individuals, or people of unsound mind should not serve as witnesses.
- Witnesses must sign in the presence of the testator, but they do not need to sign in front of each other.
What is the role of an attestation clause in a will?
- An attestation clause explains how the will was executed.
- There is no legal requirement for an attestation clause, but a well-drafted one creates a presumption of due execution (i.e., the will was executed correctly).
- Without an attestation clause, proof of proper execution is required, often through an affidavit of due execution from the witnesses.
- If the will is executed in special circumstances (e.g., the testator is blind or illiterate), the clause should reflect those circumstances.
What are the consequences of an improper or missing attestation clause?
- Without a properly drafted attestation clause, additional proof of due execution will be needed, usually through an affidavit.
- This can complicate the probate process, making it more difficult to prove the will was executed correctly.
What does Section 15 of the Wills Act 1837 state about witnesses who are beneficiaries?
- If a beneficiary or their spouse acts as a witness, any gifts to them under the will are void.
- The will remains valid, but the witness cannot inherit under it.
- If a professional executor (who can charge for their services) witnesses the will, Section 15 does not apply to their remuneration for acting as executor.
- The appointment of the beneficiary as an executor remains valid, even if they cannot inherit under the will due to Section 15.
- If there are two other valid witnesses not subject to Section 15, or if the will is later confirmed by a properly executed codicil, the effect of Section 15 can be ignored, and the will is still considered properly executed.
What is the basic overview of a standard will?
- A standard will includes sections like Commencement, Revocation, Burial/Funeral Wishes, Appointment of Executors, Guardianship, Gifts (specific, pecuniary, general), Residuary Gift, Administrative Clauses, Date & Attestation.
- The will is clearly written, avoids ambiguous terms, and commonly uses capitals for key clauses like “I GIVE” and “I APPOINT.”
- Punctuation is often avoided for consistency in legal interpretation.
- Numbered paragraphs and the use of sub-clauses make it easier to read and cross reference.
- Precedents are an aid to drafting and may not reflect what is required without amendment.
What information is included in the introductory clauses of a will?
- Identifies the testator by their full name, address, and sometimes occupation.
- Mentions any aliases or names the testator is known by.
- The date of the will can be placed here or at the end of the will, marking the document’s finalisation.
What does the Revocation clause in a will do?
- Revokes all previous wills and codicils, ensuring only one valid will is in place.
- Avoids potential conflicts with earlier documents.
- Revocation can also occur by operation of law (e.g., marriage, divorce), destruction, or codicils.
- While not mandatory, including a revocation clause prevents uncertainty.
- If a testator has more than one valid will the later will impliedly revokes the earlier will but only to the extent that it is inconsistent with or merely repeats the terms of the earlier will.
How are burial or funeral wishes handled in a will?
- Testators may specify burial, cremation, or funeral arrangements, but these are not legally binding.
- Executors or personal representatives usually follow these wishes as a matter of respect.
- Typically included early in the will before any gifts or appointments.
What is an executor/PR?
- The role of a personal representative (‘PR’) is to collect in the deceased’s assets and administer the estate (s.25 Administration of Estates Act 1925); they must pay the deceased’s debts, administration costs and expenses and distribute assets to the correct beneficiaries.
- A PR is appointed by will is referred to as an executor and their power to act derives from the will.
- If a will does not appoint an executor who can act, the Non Contentious Probate Rules determine who acts as PR. A Pr appointed by the NCPR is an administrator.
What is the purpose of the Appointment of Executors clause?
- Names the individuals responsible for administering the estate.
- Executors must be over 18 and have mental capacity; bankrupt individuals may face restrictions.
- It is common to name at least two executors to ensure continuity if one cannot act, however a minimum of one if required.
- The testator is free to choose their executor.
- Unless stated otherwise, the appointment of a spouse/civil partner becomes ineffective if the testator later divorces/dissolves their civil partnership.
What happens if more than four executors are appointed?
Only four executors can apply for the grant of probate at any time.
If more than four are appointed, the others may have their powers reserved and can act if needed later.
How can an executor’s appointment be qualified?
- In most cases, the scope of an executor’s appointment is absolute and unresitricted. However, qualified appointments are possible.
- An executor’s role can be limited by time (e.g., during a specific period), type of asset (e.g., real property) or business assets, or location (e.g., for international estates).
- Qualified appointments are used to address specific estate management needs.
- Where a qualified appointment is made the drafter must ensure all of the estate will be administered and no assets passing under the will are left without an executor appointed to deal with them.
- An appointment may be void if it is not clear that someone has been appointed that role, or there is ambiguity about who is supposed to fulfil the role.
How are Executors and Trustees appointed together?
- Executors often act as trustees if a trust arises in the will.
- At least two trustees are required for most trusts, or a corporate trustee may act alone.
- Additional trustees may be appointed if the initial ones cannot act.
How is a law firm partnership appointed as executors?
- Law firms cannot be named as executors, instead, all of the partners (construed as profit sharing) at the date of death are appointment (‘a’ or ‘any one’ partner is void for uncertainty).
- The will should specify that any current partners at the firm at the time of the testator’s death will act as executors.
- A testator can express a preference for a specific partner but should avoid a personal appointment (that person may no longer practice or work at the firm).
Can LLPs or trust corporations act as executors?
Yes, an LLP or trust corporation can be appointed as an executor.
They are often chosen for their professional expertise and ability to act as sole executors, especially for complex estates.
What are the considerations when appointing professional executors?
- Professional executors, such as solicitors or trust corporations, are often appointed for their expertise.
- They may charge for their services, and it is wise to check the fee structure beforehand.
- They will want to include an express charging power. This is commonly added as part of the appointment clause.
- The statutory right to charge under s.29 Trustees Act 2000 imposes some restrictions.
- Are ideal for handling complex estates or where neutral administration is preferred
What are the considerations when appointing guardians?
- A testator with parental responsibility may appoint a legal guardian for their infant children by will (s 5 Children Act 1989).
- Appointment by one parent would not normally take effect until after the death of the surviving parent.
- The testator should obtain consent from the proposed guardian(s) that they are willing to act. A guardian is not required to accept their appointment.
Consider: Whether any financial provision for the guardian is appropriate (e.g., legacy to be paid only if guardian is appointed), or whether jointly appointed guardians will work together effectively.
What are administrative powers in a will?
- Executors administer the estate, while trustees manage any ongoing trusts.
- Administrative powers allow both roles to function, derived from statute, common law, or the will itself.
- Express powers in the will may override or supplement default powers.
- Without express provisions, statutory/common law powers apply.
- Common express powers relate to asset management, payment of debts, and distribution to beneficiaries.
Administrative powers are usually found at the end of a professionally drafted will after property disposition clauses.
What is the role of administrative powers in estate administration?
- Executors handle estate assets, ensuring debts and expenses are paid before distribution.
- Trustees manage any trust created by the will, continuing their role as long as the trust exists.
- Executors and trustees must act according to the powers given in the will or legal provisions, ensuring proper asset management and beneficiary rights.
- A will may include express powers to adjust or expand statutory powers, like varying how investments are handled or when assets are sold.
How do express administrative powers affect the executor and trustee roles?
- Express administrative powers, often included at the end of the will, grant executors and trustees specific abilities to manage the estate or trust.
- These powers may allow executors to delay asset distribution or trustees to invest in certain ways.
- Without such provisions, they would be limited to standard powers under statutory law or common law, potentially complicating effective estate management.
- The use of standard provisions (e.g., STEP provisions) helps clarify and simplify the executor/trustee responsibilities.
What is the purpose of the date and attestation clause in a will?
- The attestation clause verifies the proper execution of the will, confirming it was signed in the presence of two witnesses.
- The date may be included here or at the beginning of the will, but should not appear in both places.
- While the testator doesn’t need to sign at the end of the will, the attestation clause typically comes last to ensure clarity on the testator’s intention.
What are dispositive clauses?
- Dispositive clauses in a will direct who inherits the testator’s assets, what they receive, and on what terms.
- Gifts can be absolute or conditional, including legacy (personal property, e.g., gifts or chattels) and devise (real property).
- They may be specific, general, pecuniary or residuary gifts.
What order do dispositive clauses appear in and what are the types?
Non-monetary gifts come first, followed by monetary legacies and finally, the residue.
Types include:
1. Specific (e.g., items or chattels)
2. General
3. Pecuniary (cash)
4. Residuary (remaining estate)
What are special gifts and what are the vulnerable to (dispositive clauses)?
Specific gifts refer to specific items of value that the testator leaves to a designated beneficiary. These are identified clearly to avoid any confusion, typically with a detailed description such as:
Personal chattels: Specific personal possessions (e.g., “I leave my gold Rolex watch to my son Mark”).
Real estate: Properties or land (e.g., “I leave my house at 123 Elm Street to my niece Sarah”).
Special gifts are:
- Vulnerable to ademption: If the testator no longer owns the item at the time of death (e.g., they sold the house), the gift will fail unless the will provides alternative provisions.
- The solicitor should check the testator’s intention in the event that the original item no longer exists.
What are collections (dispositive clauses)?
A collection refers to a group of similar items bequeathed as one unit.
- The collection should be clearly defined to avoid disputes about what is included.
- A will can also set out how the collection is to be divided among beneficiaries if applicable. Where division is required, the will should specify how the agreement should be reached, a timeframe for deciding on a division, and state how any failure to agree within such timeline should be resolved (in the absence of an agreement the executors should decide).
- The testator may need to define whether new items added to the collection after the will’s drafting are also included.
What are chattels (dispositive clauses)?
Personal chattels include tangible movable property (excluding money, business assets, investments) under s.55(1)(x) AEA 1925.
The definition should be adjusted if necessary (e.g., include vehicles or exclude business items).
- A gift of a collection of chattels is a type of specific gift.
- Most testators will have chattels which are included and distributed in their succession estate when they die. To the extent that these are not to be given away under the will, a specific clause is needed.
What potential conflict arises when a will contains both specific gifts and a general gift of personal chattels, and how can this be avoided?
A conflict arises if both the specific gift and the general gift of chattels (as defined by s. 55) attempt to give away the same items.
To avoid this, specific gifts of items or collections should appear before the general gift of chattels in the will, and the general gift should be drafted to cover only items not already specifically gifted.
What happens if the testator owns a property jointly?
Joint ownership of property affects their distribution upon the testator’s death:
- If owned as joint tenants, the chattels pass automatically to the surviving co-owner(s) and do not form part of the testator’s estate.
- If owned as tenants in common, the testator can dispose of their share in their will, and the chattels will be dealt with according to the will’s terms.
If the testator has no beneficiary in mind to receive the property and is happy for it to be sold as part of the administration and proceeds to be distributed according to the terms of the will, no specific provision within the will is required.
What are specific gifts of land (dispositive clauses)?
The bequest of real estate in a will. The property must be clearly described to avoid ambiguity:
- Full address and, if possible, title number should be included.
- If the testator owns multiple properties, specific identification is necessary (e.g., “I leave my house at 123 Elm Street”).
- The clause should expressly state what will happen if that property is no longer owned by the testator when they die. e.g., should a specific alternative property be given.
Additional matters -
The property must be capable of passing under the will, so if owned as joint tenants the joint tenancy must be severed.
Third party interests - If the property is owned jointly as tenants in common, and the testator wants to leave their share to someone other than the surviving co-owner, the testator needs advising on the rights of the co-owner.
What should a testator do if they want to give their interest in a property to a beneficiary?
They should consider:
- Severing joint tenancy: If the property is jointly owned, severing a joint tenancy can ensure the testator’s share is included in the will.
- Clarity in description: Ensure the property and the testator’s interest are clearly described in the will.
Conditions: Specify any conditions for the gift (e.g., whether the beneficiary can sell or must retain the property). - Substitution: If the testator anticipates that the property may be sold, they could include an alternative bequest (e.g., a cash equivalent).
