Chapter 3) Will drafting Flashcards
1
Q
What is the purpose of the commencement clause in a will?
A
To identify the testator, stating their full name and address.
The testator’s occupation is sometimes also added, and if known by another name or has assets in another name, those should be referred to.
2
Q
What does a revocation clause do in a will?
A
It ensures all previous wills and testamentary dispositions are revoked, so only one valid will exists at any one time.
A will is valid without a revocation clause, but including one avoids uncertainty.
3
Q
True or False: A will is traditionally drafted with punctuation.
A
False.
Wills are traditionally drafted without punctuation.
4
Q
What is commonly capitalized in a will to clarify the purpose of clauses?
A
Words that explain the purpose of the clause, e.g., I GIVE; I APPOINT.
This practice aids in understanding the intentions of the testator.
5
Q
What is the role of a personal representative (PR) in a will?
A
To collect in the deceased’s assets, administer the estate, pay debts, and distribute assets to beneficiaries.
A PR appointed by will is referred to as an executor.
6
Q
How many executors are typically recommended to be appointed in a will?
A
At least two executors are recommended.
This ensures that there is a backup in case one executor does not survive or is unable to act.
7
Q
Fill in the blank: A testator with parental responsibility may appoint a legal guardian for their infant children by _______.
A
[will].
8
Q
What must be considered when appointing guardians in a will?
A
Consent from the proposed guardian(s) and whether financial provision for the guardian is appropriate.
A legacy to be paid only if the guardian is appointed can be considered.
9
Q
What is the difference between an executor and a trustee?
A
An executor administers the estate, while a trustee manages any ongoing trusts after estate administration.
Their roles are distinct but often overlap in practice.
10
Q
What does the administrative clause in a will state?
A
It states the powers the executors and trustees have to carry out their roles.
Express powers take precedence over statutory and common law defaults.
11
Q
True or False: A will can be valid without including revocation, date, and attestation clauses.
A
True.
12
Q
What is the significance of using precedents in will drafting?
A
Precedents provide a basic structure and aid in ensuring clarity and compliance with legal standards.
They should be amended according to client instructions.
13
Q
What is an express trust in the context of a will?
A
A trust explicitly created by the testator’s will, which outlines how assets are to be managed for beneficiaries.
Even if no express trust is created, a trust may arise if executors cannot distribute the estate.
14
Q
What is the maximum number of executors that can apply for a grant of representation?
A
Four executors.
15
Q
Fill in the blank: An LLP or trust corporation may be appointed as _______.
A
[sole executor and trustee].
16
Q
What is required for a will to be executed validly according to s 9 Wills Act 1837?
A
The will must be signed in the presence of two or more witnesses.
An attestation clause usually confirms this requirement.
17
Q
What happens if a testator appoints a spouse or civil partner as executor and later divorces?
A
The appointment becomes ineffective unless stated otherwise.
This is governed by s18A / C Wills Act 1837.
18
Q
What is the purpose of an attestation clause?
A
To describe the circumstances in which the will was signed and confirm the requirements for due execution.
It typically states that the will was executed in the presence of witnesses.
19
Q
What should a drafter ensure when making a qualified appointment of an executor?
A
That all of the estate will be administered and no assets are left without an executor.
The grant of representation will also be limited accordingly.
20
Q
True or False: Professional executors and trustees are allowed to charge for their time without restrictions.
A
False.
There are statutory restrictions under s 29 Trustee Act 2000.
21
Q
What is a common approach to drafting administrative clauses in a will?
A
Including express administrative provisions that reflect the needs of the client.
These clauses usually appear at the end of a will.
22
Q
What should the drafter consider if a trust is created by a will?
A
The will itself serves as the trust deed, but clarity is important in distinguishing roles.
‘Trust deed’ usually refers to a document for a lifetime trust.
23
Q
What is the role of executors and trustees in a will?
A
They are appointed to carry out the testator’s wishes as specified in the will
Executors manage the estate, while trustees manage any trusts created in the will
24
Q
What type of powers do administrative clauses in a will state?
A
They state the powers executors and trustees have to carry out their role
Express powers take priority over statutory and common law defaults
25
What are dispositive clauses in a will?
Clauses that direct who inherits assets, what they receive, and under what terms
## Footnote
Includes terms like 'legacy' and 'devise'
26
What is the traditional order of gifts in dispositive clauses?
Specific gifts, general gifts, pecuniary gifts, then residuary gifts
## Footnote
Specific gifts are given first, followed by cash gifts and finally everything else
27
What distinguishes a specific gift in a will?
It refers to a particular item owned by the deceased at the date of death
## Footnote
Must be drafted precisely to avoid uncertainty
28
What happens to a specific gift if the testator no longer owns the item at death?
The gift adeems and fails to take effect
## Footnote
The beneficiary receives nothing
29
What is a collection gift in a will?
A gift of multiple items to be divided among beneficiaries
## Footnote
Must be clearly identified to avoid uncertainty
30
What is a chattel in the context of a will?
Tangible movable property, excluding money and certain business assets
## Footnote
Defined by section 55(1)(x) of the Administration of Estates Act 1925
31
What is a general legacy?
A gift of property that is not distinguished from similar property
## Footnote
It does not fail if the specified property is not part of the estate
32
What defines a pecuniary gift?
A gift of a specific sum of money
## Footnote
Can be either specific or general
33
What is a residuary gift?
A gift of all property not already disposed of under the will
## Footnote
It is usually the largest part of the deceased's estate
34
What should a residuary clause ensure regarding debts and expenses?
It should state that debts, legacies, and funeral expenses are paid from the estate before distributing residue
## Footnote
This prevents partial intestacy
35
What is the effect of a substitution provision in a will?
It takes effect if the primary gift fails
## Footnote
Helps avoid partial intestacy
36
What is a demonstrative legacy?
A type of general legacy directed to be paid from a specified fund
## Footnote
If the fund is insufficient, the remainder is treated as a general legacy
37
What is the importance of clearly identifying property in specific gifts?
To ensure the item can be identified and avoid uncertainty
## Footnote
Vague descriptions may render the gift void
38
What must be considered when gifting real property in a will?
The property must be identifiable and capable of passing under the will
## Footnote
Jointly owned property passes automatically to the surviving co-owner
39
What happens if a residuary gift fails?
It results in a partial intestacy
## Footnote
This complicates administration and may not reflect the testator's intentions
40
What happens if a gift, or part of it, results in a partial intestacy?
It creates additional administrative complications for the PRs and may lead to a distribution not intended by the testator.
41
What are three strategies used in professionally drafted wills to reduce the risk of partial intestacy?
* Avoid giving separate parts of residue
* Create express substitution clauses
* Use an ultimate gift over clause
42
What is a common choice for an ultimate beneficiary in a will?
A gift to a charity.
43
What should be included when drafting specific gifts in a will?
A substitution clause to address if the item is no longer owned by the testator at death.
44
Why is the gift of residue usually more complex than other gifts?
It should include a definition of the property and explain what items will be paid out of residue.
45
What happens if a specific, general, or pecuniary gift fails without an express substitution?
The subject of the gift may be distributed under a clause giving away the chattels or fall within the definition of ‘residuary estate’.
46
What is the basic structure of a will?
* Commencement
* Revocation
* Burial / Funeral wishes
* Appointment of executors & trustees
* Appointment of guardians
* Specific gifts
* General gifts
* Pecuniary gifts
* Residuary gift
* Administrative clauses
* Date & Attestation
47
What is the general rule regarding the date from which a will speaks?
The will speaks from the date of the testator’s death unless a contrary intention is shown.
48
What constitutes a contrary intention in a will?
Words like ‘my’, ‘now’, or ‘at present’ make the date of execution of the will the relevant date.
49
How are gifts of collections treated in relation to the date of execution?
They are construed to mean items included in the collection at the date of death.
50
When identifying beneficiaries in a will, when does the will speak from?
The date of execution unless the wording shows a contrary intention.
51
What do relieving provisions in a will deal with?
They address who bears the burden of taxes, charges, expenses, and costs.
52
What is the standard practice regarding inheritance tax in wills?
Legacies are usually drafted as free from tax, with the residuary estate bearing the burden.
53
What is the effect of a general direction in a will regarding debts and expenses?
It is insufficient to oust the effect of s.35 AEA regarding the property subject to a charge.
54
Under what circumstances can extrinsic evidence be submitted to interpret a will?
* If the will or any part of it is meaningless
* If the language used is ambiguous
* If the will is ambiguous in light of surrounding circumstances
55
What is the commorientes rule?
It presumes that the eldest died first if two deaths occur in close succession and the order is uncertain.
56
What is a survivorship clause in a will?
It states that a beneficiary must survive the testator by a specified period to take a gift.
57
What is the typical survivorship period used in wills?
28 or 30 days.
58
What must a testator clarify regarding gifts to their issue?
* Whether the gift is to an individual or a class
* Whether the gift is vested or contingent
* What happens if a beneficiary predeceases
59
What is the difference between a vested gift and a contingent gift?
A vested gift is given outright with no conditions, while a contingent gift requires a beneficiary to satisfy a condition before inheriting.
60
What does it mean for a gift to lapse?
A gift lapses when the intended beneficiary dies before the testator, resulting in the gift failing.
61
What are class gifts?
Gifts given to a group of beneficiaries meeting a general description, such as 'children' or 'grandchildren'.
62
When does a class close according to the class closing rules?
A class closes when any one member of the class first becomes entitled in possession.
63
What is the significance of Section 33 of the Wills Act 1837?
It allows gifts to a deceased beneficiary's children to take effect as gifts to those children if they are living at the testator's death.
64
What should be included when drafting gifts to charities?
Full name and address of the charity, express provisions for name changes, and who can give valid receipt.
65
What is a substitutional gift?
A gift specified to take effect if the original beneficiary has died before the testator.
66
Fill in the blank: A gift to children includes ________ children, legitimated children, and adopted children.
illegitimate
67
True or False: A stepchild is included in a gift to children unless the will clearly states otherwise.
False
68
What is a vested interest?
An interest that vests when a gift is given outright and absolutely, with no conditions to meet.
69
What happens if a beneficiary does not satisfy the condition of a contingent gift?
The gift fails and does not pass to the beneficiary's estate.
70
What should a testator consider if they want to provide for grandchildren born after their death?
The will should clearly state this intention.
71
What is the effect of the cy-pres doctrine in charitable gifts?
It allows a gift to be given to a different charity with a similar purpose if the original charity cannot receive it.
72
What are the criteria for incorporating an unexecuted document into a will?
* The document must exist when the will is executed
* The will must refer to the document as being in existence
* The document must be clearly identified in the will
73
What is the risk of incorporating an unexecuted document into a will?
There is a danger of failing to satisfy the incorporation conditions or losing the document before death.
74
When drafting gifts to issue, what is generally preferable?
To use express wording to state when a class gift closes.
75
What should be done if a testator does not want Section 33 to apply?
It should be clearly stated in the will.
76
What happens if a pecuniary legacy lapses?
The money would end up in the residuary estate.
77
What is a common substitution when considering gifts to children?
In favor of the testator’s grandchildren.
78
What is mistaken about incorporating an unexecuted document into a will?
It can lead to failure to satisfy conditions or loss of the document before death.
## Footnote
Incorporating unexecuted documents can complicate the validity of a will.
79
What is the safer alternative to including an inventory or detailed list of goods in a will?
Include the list in the will itself as a schedule.
## Footnote
This helps avoid issues with unexecuted documents.
80
What does STEP stand for?
Society of Trust & Estate Practitioners.
## Footnote
STEP promotes best practices in will drafting and estate administration.
81
What do STEP provisions provide?
Nationally recognised administrative powers for personal representatives and trustees.
## Footnote
These powers can simplify the drafting of wills and trust deeds.
82
How can STEP provisions be incorporated into a will or trust deed?
By reference, without needing to copy each provision in full.
## Footnote
This streamlines the legal drafting process.
83
What is a letter of wishes in the context of a will?
A document drafted by the testator to guide trustees on managing discretionary powers.
## Footnote
These letters are not legally binding.
84
Are letters of wishes part of the will or trust created under it?
No, they do not form part of the will.
## Footnote
They serve only as guidance.
85
What must a document do to be incorporated into a will by reference?
It must be clearly identified, in existence when the will is executed, and referred to in the will as being in existence at execution.
## Footnote
This ensures the document's validity at the time of will execution.
86
What happens to a document successfully incorporated into a will?
It is admitted to probate along with the original will.
## Footnote
This ensures that the incorporated document is legally recognized.
87
True or False: Clients should be advised to incorporate additional documents into their wills.
False.
## Footnote
Practical issues may arise if conditions for incorporation are not satisfied.
88
What is the purpose of amending a will?
To ensure the current form reflects the testator's wishes.
89
What are three options a testator has to amend their will?
* Make an entirely new will
* Create a codicil
* Make manuscript amendments
90
What is a codicil?
A formal testamentary document amending a will.
91
What is the preferred method for a testator wanting to amend their will?
Make a new will.
92
Why is making a new will often advised over codicils or manuscript amendments?
The cost is minimal compared to potential disputes later.
93
What governs the effect of hand alterations to a will?
s 21 Wills Act 1837.
94
What types of alterations can be made to a will?
* Obliteration
* Interlineation
* Other alterations
95
What is the general rule regarding amendments made after the execution of a will?
They are invalid and unenforceable.
96
What is the presumption regarding the timing of alterations made to a will?
An alteration is presumed to be made after execution.
97
What must be done for an alteration to be deemed valid?
It must be executed in the same manner as required for the execution of a will.
98
What happens if the original wording of a will is not apparent due to obliteration?
The obliteration is treated as having been made by the testator with intent to revoke.
99
What is required for a codicil to be valid?
* Testamentary capacity
* Knowledge and approval
* Compliance with s.9 Wills Act 1837
100
When should a testator consider using a codicil?
* To create new provisions
* To edit existing provisions
* To revoke provisions
101
What is the risk associated with drafting codicils?
Significant risk of error leading to inconsistency or ambiguity.
102
What does executing a codicil do to the original will?
Acts to 'republish' the will.
103
What should a properly drafted codicil avoid?
Inconsistency or ambiguity with the original will.
104
What is a common pitfall when drafting codicils?
Not expressly noting a change to the testator's name or address.
105
What should be done if manuscript amendments are made?
The testator and witnesses should initial the alterations.
106
What is the presumption regarding blank spaces completed in a will?
They are presumed to have been completed before execution.
107
What is the significance of attested alterations?
They are deemed valid if executed like a will.
108
What does 'apparent' mean in the context of manuscript changes?
The original wording can be deciphered by natural means.
109
What can rebut the presumption that an alteration was made after execution?
Internal or external evidence.
110
What is conditional revocation?
Revocation based on a conditional intent by the testator.
111
What are the exceptions to the general rule that unattested alterations are invalid?
* Completing a blank space
* Obliterations with intent to revoke
112
What is the effect of a codicil on the terms of an original will?
It only revokes the earlier will to the extent of inconsistency.
113
What is the effect of executing a codicil?
It acts to ‘republish’ the will (and any codicils) it expressly refers to, as if executed on the date of the codicil.
114
When applying general rules of construction to an original will, which date is used?
The date of the codicil.
115
What happens if a testator's brother has more sons at the date of the codicil than at the date of the will?
The youngest son at the date of the codicil would benefit.
116
What does a codicil allow a testator to do regarding previous testamentary documents?
It can ‘correct’ problems with earlier documents.
117
What is the effect of s15 Wills Act 1837 when a beneficiary witnesses a will?
It denies the beneficiary their inheritance.
118
Can a later codicil witnessed by different people validate a gift under the original will?
Yes, it can give effect to the gift under the will.
119
What must be true for unattested manuscript amendments to be confirmed by a later codicil?
The amendments must be made before the codicil is executed.
120
What happens if a will was not properly executed according to s9 Wills Act 1837?
Due execution of the codicil will validate the original will.
121
What can a codicil do regarding revocation?
It may revoke part or all of an earlier will or codicil.
122
What is a codicil's role in reviving a previously revoked will?
It can revive a will that was revoked if this is the testator’s intention.
123
What is a key risk associated with drafting a codicil instead of a new will?
There may be confusion regarding testamentary documents made in the interim.
124
What is required for a will to be revoked by destruction?
There must be a physical act of destruction and intention to revoke.
125
What is the effect of a testator amending their will by hand?
It may revoke the original gift if the new version is valid.
126
What happens if a will is damaged or missing after the testator's death?
The testator is presumed to have revoked their will unless evidence suggests otherwise.
127
What is an express revocation clause?
It is a clause included in a will to revoke all previous wills.
128
What is implied revocation by will?
A later will without an express revocation clause may imply revocation of earlier inconsistent wills.
129
What distinguishes mutual wills from mirror wills?
Mutual wills involve agreements not to amend, while mirror wills do not imply such an agreement.
130
What does s18 Wills Act 1837 state about marriage and wills?
It automatically revokes any will made prior to the marriage.
131
How can a testator avoid revocation of a will upon marriage?
By drafting the will in contemplation of marriage and naming the intended spouse.
132
What is the significance of including a clause about the effect of a marriage or civil partnership on a will?
It ensures the will survives the marriage or civil partnership if intended.
133
What happens if the testator's marriage or civil partnership does not take place?
Consideration should be given to whether the will is still intended to be valid.
134
What is the effect of a testator's marriage or civil partnership on a will?
A will is revoked in full by a testator’s subsequent marriage or civil partnership under s 18 and s 18B WA 1837.
135
What can a testator include in a will to avoid revocation upon marriage?
A will can be made in contemplation of a particular marriage/civil partnership to avoid revocation.
136
What is the effect of divorce on a testator's will?
A divorce or dissolution of civil partnership treats the former spouse/civil partner as having died before the testator, resulting in partial revocation of the will.
137
What happens to a gift made to a former spouse in a will after divorce?
A gift to the former spouse fails, and the items may pass to a named alternative beneficiary or under the general gift of residue.
138
What is the purpose of section 18A and 18C of the WA 1837?
These sections render the appointment of the former spouse as an executor or trustee ineffective and void any gifts to them.
139
What should a lawyer advise a married client regarding their will?
Lawyers should advise married clients about the automatic effects of divorce or dissolution on their will.
140
What is the two-stage test for assessing claims under the IPFDA 1975?
1. Did the deceased fail to make reasonable financial provision for the applicant? 2. What award should the court make?
141
What are the two standards of reasonable financial provision under the IPFDA 1975?
* Surviving spouse standard: Reasonable provision for maintenance of a spouse/civil partner
* Maintenance standard: Reasonable provision for maintenance of other applicants
142
What conditions must be satisfied for the extension of the surviving spouse standard under section 14?
* Applicant is a former spouse or civil partner who has not remarried
* Divorce or dissolution occurred within 12 months of death
* No order for financial provision has been made
143
What is the significance of ancillary relief in divorce proceedings?
Ancillary relief refers to financial orders that a court may make upon divorce, dissolution, annulment, or judicial separation.
144
What factors does the court consider when assessing claims under section 3 of the IPFDA 1975?
* Applicant's financial resources and needs
* Financial resources and needs of other applicants
* Financial resources and needs of beneficiaries
* Deceased's obligations towards applicants or beneficiaries
* Size and nature of the deceased's estate
* Any disabilities of applicants or beneficiaries
* Any other relevant matters
145
What specific factors does the court consider for spouses/civil partners under section 3(2)?
* Applicant's age and duration of marriage/civil partnership
* Contribution to the welfare of the family
* Expected provision in divorce/dissolution proceedings
146
What must the court consider for children of the deceased under section 3(3)?
* Manner of education or training
* Maintenance responsibilities by the deceased
* Liability of others for maintenance
147
What awards can the court make under section 2(1) of the IPFDA 1975?
* Periodical payments
* Lump sum
* Transfer of property
* Settlement of property
* Acquisition of property for transfer
* Variation of marriage settlements
* Variation of civil partnership settlements
* Variation of trusts
148
What is the difference between the surviving spouse standard and maintenance standard?
The surviving spouse standard considers reasonable provision without needing for maintenance, while the maintenance standard focuses on what is needed for maintenance.
149
True or False: A will made after a divorce is affected by sections 18A and 18C.
False
150
Fill in the blank: The court does not consider whether the deceased was morally wrong to dispose of their estate in the way that they did under the _______.
IPFDA 1975
151
What happens if a testator dies partially intestate due to the failure of a gift to a former spouse?
The testator's estate may pass to a named alternative beneficiary or under the general gift of residue.
152
What is the role of the court in determining the form of award in IPFDA claims?
The court assesses the quantum and form of the award based on the applicant's category and relevant factors.
153
What is the basis for claims under the I(PFD)A 1975?
Claims can only be made on the ground that the deceased failed to make 'reasonable financial provision' for the applicant.
154
What determines 'reasonable financial provision'?
It depends on the relationship between the deceased and the applicant, with different standards for spouses/civil partners and other applicants.
155
What are the two standards of reasonable financial provision under Section 1(2)?
* Surviving spouse standard
* Maintenance standard
156
What does the surviving spouse standard require?
Such financial provision as it would be reasonable in all the circumstances for a husband or wife or civil partner to receive.
157
What does the maintenance standard require?
Such financial provision as it would be reasonable for the applicant to receive for his/her maintenance.
158
What conditions allow the court to apply the surviving spouse standard under Section 14?
* Applicant is a former spouse/civil partner who has not remarried
* Divorce occurred within 12 months of death
* No financial provision order made in ancillary proceedings
159
What is the difference between 'divorce' and 'dissolution'?
'Divorce' ends a marriage, while 'dissolution' ends a civil partnership.
160
What does 'ancillary relief' refer to?
Financial orders that a court may make upon divorce, dissolution, annulment, or judicial separation.
161
What are the common guidelines the court must consider under Section 3(1)?
* Applicant’s financial resources and needs
* Financial resources and needs of other applicants
* Financial resources and needs of estate beneficiaries
* Obligations of the deceased towards applicants or beneficiaries
* Size and nature of the net estate
* Physical or mental disability of applicants or beneficiaries
* Any other relevant matters
162
What specific guidelines must the court consider for spouses/civil partners under Section 3(2)?
* Applicant’s age and duration of marriage/civil partnership
* Contribution to the welfare of the deceased's family
* Expected provision in divorce/dissolution proceedings
163
What must the court consider for children of the deceased under Section 3(3)?
The manner in which the applicant was educated or trained.
164
What is the two-stage test for IPFDA 1975 claims?
* Did the deceased fail to make reasonable financial provision for the applicant?
* What award should the court make?
165
What is the first step in assessing reasonable financial provision?
Determine whether the deceased made 'reasonable financial provision' for the applicant.
166
What does Section 2(1) of the IPFDA 1975 allow the court to order?
* Periodical payments
* Lump sum
* Transfer of property
* Settlement of property
* Acquisition of property for transfer
* Variation of marriage/civil partnership settlements
* Variation of trusts on which the deceased’s estate is held
167
True or False: The courts assume that an applicant will receive a 50% interest of the estate on a clean break basis.
False
168
What may a life interest amount to in terms of reasonable financial provision?
It may amount to reasonable financial provision depending on the income level the property produces compared to the applicant’s needs.
169
What is the objective assessment required by the court?
The court must consider all relevant facts and apply statutory guidelines without moral judgment on the deceased's actions.
170
What must the court assess regarding the quantum and form of award?
* How much should the applicant receive?
* What form should the award take?
171
What is a discretionary trust in the context of financial provision?
An interest under a discretionary trust may not constitute reasonable financial provision as it does not guarantee the applicant anything.
172
What are the specific guidelines for cohabitees under Section 3(2A)?
* Age of the applicant
* Length of cohabitation
* Contribution to the welfare of the family
173
What does the court consider if an applicant does not fall into previous categories but was maintained by the deceased?
* Length of time and basis of maintenance
* Extent of contribution made by the deceased
174
Fill in the blank: The court's assessment is based largely on _______.
[financial evidence]
