5. Will Drafting

Question 1

Will Drafter: Wishes to exclude provision requiring that the appropriation of assets requires the consent of existing legatees

Answer 1

1. Generally, s 41 AEA requires consent of legatee where certain assets have been specifically bequeathed (if executor wishes to sell this item to satisfy the interest of another)
2. This provision may be de-applied in the will (in which case, consent is not a formal requirement)
3. If the executor is a beneficiary and wishes to apply a specific asset for their OWN interest, this consent will be required to avoid breaches of the fiduciary duties that they are so bound

Question 2

If a testator wishes to have a solicitor as an executor in their will - what should they have regard to when appointing a solicitor from a general partnership firm

Answer 2

1. more desireable to appoint a firm of solicitors rather than an individual
2. but want to allow for possibility firm changes its name or becomes LLP etc, so should name the partners in the firm alive at the death of the testator

Question 3

Specific Legacies
1. what are they
2. when can they be validly given in a will
3. tax implications?

Answer 3

1. specific gifts owned by testator / testatrix
2. testator must own it at death or it adeems
3. should indicate whether specific legacies are free from or subject to tax

Question 4

Who has the burden of costs associated with transporting a specific gift under the will to the beneficiary?

Answer 4

1. generally, beneficiary will bare the cost UNLESS the will provides otherwise

Question 5

Who is responsible for paying mortgage debt on a property (subject to mortgage) gifted by will

Answer 5

Generally, the receiver of the property pays unless will expresses that the property is to be FREE of mortgage

Question 6

Who has the burden of paying inheritance tax on individual legacies

Answer 6

Generally, the residuary estate will cover it, unless a contrary intention is seen

Question 7

Are trustees / PRs able to obtain insurance over will / trust assets?

Answer 7

Yes, by virtue of the TA 1925, but the will may want to include an express provision to this effect

Question 8

How can a testator draft their will to vary the powers to accept receipts from or on behalf of minors?

Answer 8

1. clause allowing trustees to hold a legacy rather than it going to the parent (as parents can give good receipt for a minor child)
2. or allow child to give good receipt once they are over 16

Question 9

When would it be important for a testator to include a provision in the will permitting self-dealing by trustees

Answer 9

If an executor or trustee is also a beneficiary

Question 10

Does a trustee running a trust (from a will) have a statutory power to appropriate trust property towards beneficial interests WITHOUT getting the consent of beneficiaries?

Answer 10

No, as s 41AEA does not apply to trustees
- if this is the testator’s intention they must have an express clause to this effect

Question 11

Power to appropriate assets without consent of legatee: Provision in Wills

Answer 11

s 41 AEA lets PRs appropriate any assets in estate in or towards satisfaction of any legacy or interest in residue so long as this does not prejudice beneficiaries of specific legacies
- person getting assets must consent but this requirements may be removed

Question 12

Will trust of land: What special duties do trustees have towards beneficiaries of trusts of land who have an interest in possession?

Answer 12

1. duty to consult B to do anything to the land
2. duty to give effect to B’s wishes so long as they are in the general interest of the trust
3. Right to occupy land subject to the trust (B) if trust made land available for this purpose - no power to exclude this if the purpose is made clear for occupation

Question 13

Requirement to raise presumption of due execution

Answer 13

1. Attestation clause

Question 14

Can a solicitor take instructions from a third party for a client’s will? (Professional Conduct)

Answer 14

1. Generally, instructions from authorised third parties are permitted, BUT
2. it is not in the client’s BEST INTERESTS to do this for wills, so no

Question 15

Can a solicitor prepare a will which leaves a significant gift to the solicitor?

Answer 15

1. (including spouse / civil partner etc) not unless the client obtains independent legal advice
2. Exception: if the will is being drafted for the solicitor’s parent and they want to leave residuary estate to children in equal shares

Question 16

Can a solicitor advise a client to appoint themselves as executor

Answer 16

Potentially, if it is in compliance with principle 7 (ie. will is complex and disputes are likely) and:
1. client must be fully informed (including other options)
2. client must know that executors NEED NOT be professional
3. should record advice given to clients about this and record the client’s decision