Chapter 5- Will Drafting

Question 1

What is the main purpose of the opening of a will?

Answer 1

To identify the testator and the nature of the document.
The full name and address of the testator should be stated.
Date at the start or end of the will.
If the testator intends to marry in the near future they should include this to avoid future invalidness.

Question 2

What is the purpose of the revocation clause?

Answer 2

To indicate that all earlier wills and codicils are expressly revoked. important to include to stop searches of any previous wills.

Question 3

Who should the will include the name and address of?

Answer 3

The names and addresses of any executors or trustees.

Question 4

Who are fiduciary?

Answer 4

Executors.
They cannot benefit from administering an estate unless they are a professional.

Question 5

What should a will do id the testator has minor children?

Answer 5

It should name new guardian parents.

Question 6

What is a pecuniary legacy?

Answer 6

Gifts of money

Question 7

What is a specific legacy?

Answer 7

Specific gifts.
If the testator does not own the specific asset at death, the gift fails. The beneficiary gets nothing in replacement unless stated in the will.

Question 8

What should be known regarding beneficiaries and wills?

Answer 8

They should be clearly identified or the will will fail for uncertainty.
Whether they are to have vested or contingent interests.
A beneficiary who dies before the testator’s gift will fail.

Question 9

What should happen in a will if the beneficiary is a charity?

Answer 9

It is important to identify the charitable body accurately.
Charitable associations do not have separate legal personalities.
An issue to consider is how the executor will obtain a receipt from the charity for the gift.

Question 10

What are the burdens of IHT?

Answer 10

The default position is that the IHT on the individual legacies is paid out of the residuary of the estate.
For houses they may say, free of mortgage, or subject to tax. Otherwise it comes from the residuary.

Question 11

Ho should debts and legacies be dealt with in a will?

Answer 11

There should be an express direction for the payment of debts, l funeral expenses, and legacies to be paid from the residue before distributed to the beneficiaries.
There is no need for a trust of the residue for an adult.

Question 12

What are common express trusts in family wills?

Answer 12

Contingent trusts, conditional on the beneficiaries attaining a specified age
Discretionary trusts
Trusts with successive interests

Question 13

How can you avoid partial intestacy?

Answer 13

If a gift of residue fails, the property will pass under intestacy rules. It is preferable to include substitutional gifts.

Question 14

What powers are to be included in all wills?

Answer 14

Power to charge
Extended power to appropriate assets without the consent of legatee
Power to insure assets
Power to accept receipt from or on behalf on minors
Self-dealing

Question 15

What powers to trustees should be included in the will?

Answer 15

Power to appropriate assets
The power to invest
Power to purchase land
Power to sell personalty
Power to use income for maintenance of beneficiaries
Power to use capital for the advancement of beneficiaries
Control of trustees by beneficiaries
Trusts of land
- Duty to consult beneficiaries
- Beneficiaries right of occupation
Power to carry on the testator’s business.W

Question 16

What does s31 TA do?

Answer 16

Gives the trustees the power to use income they receive for the minor’s maintenance, education or benefit,
Once the beneficiary turns 18 the trustee is under a duty to give income to them from the trust.

Question 17

What does s32 TA do?

Answer 17

Allows trustees in certain circumstances to give a beneficiary a payment of trust capital sooner than they would receive it under the basic provisions of the trust.
Eg for university for a deposit to purchase a house.
However, the trustees have an absolute discretion.

Question 18

Can beneficiaries change the trustees?

Answer 18

Yes, as long as they are over the age of 18 and there is no provision in the will prohibiting them from doing so.
Saunders v Vautier

Question 19

What does Paragraph 3.1 SRA Codes of Conduct say?

Answer 19

You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf.
Eg, no taking instructions from third parties

Question 20

What does Paragraph 6.1 SRA Codes of conduct say?

Answer 20

You do not act if there is an own conflict or significant risk of such a conflict.
Where the testator leaves a substantial gift to the solicitor or their spouse.
However, if the testator receives independent advice it should be fine, if not the solicitor should cease to act.

Question 21

What does the SRA codes of conduct say regarding a solicitor acting as an executor?

Answer 21

You must not exploit a client’s lack of knowledge by leading them to believe that appointing a solicitor as executor is essential or that it is the default position for someone making a will.
Principle 7- acting in the best interests of each client.
Before drafting a will, you must make sure that the client knows of all the available options for appointing an executor and ensuring that they understand that an executor does not have to be a professional and can be a family member or friend etc. And this family member can later instruct a solicitor whose fees can be paid by the estate if need be.
All advice given regarding who can act as executor and he client’s decision should be recorded.