Distribution under the will

Question 1

how old must the testator be?

Answer 1

over 18 unless they have privileged status

Question 2

What are the three requirements for a valid will?

Answer 2

1) Capacity
2) Intention
3) Formalities

Question 3

the testator must have the requisite mental capacity to meet the capacity requirements of a will - where can the statutory test for capacity be found?

Answer 3

ss 1-3 MCA
a person lacks capacity in relation to a matter if at the material time he’s unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain

Question 4

what is the common law test for capacity?

Answer 4

‘soundness of mind, memory and understanding’ - the testator must understand the nature of their act, the extent of their property and any moral claims on their estate

Question 5

Does the code of practice that accompanies the MCA indicate that the statutory test is compatible with the common law position and doesnt create a new test?

Answer 5

yes

Question 6

The common law test prevails over the MCS for testamentary capacity. True or false?

Answer 6

true

Question 7

what type of intention must the testator have in order to make a will

Answer 7

general intention to make a will
specific intention to make the particular will in question

Question 8

where section states the formalities that the will must comply with?

Answer 8

s9 Wills Act

Question 9

what are the formalities in s9 WA?

Answer 9

1) will must be in writing and signed by the testator or some other person in his presence and by his direction

2) the testator must have intended to give effect to the will

3) the will must be signed in the presence of two witnesses

4) each witness must attest and sign the will in the presence of the testator

Question 10

Both witnesses have to be present for the testators signature, but do they both have to be present for each others signature?

Answer 10

no

Question 11

if the will contains an attestation clause - what presumption does this raise?

Answer 11

it raises a rebuttable presumption that the formalities have been complied with

Question 12

unexecuted docs can be incorporated into the will if the are//

Answer 12

clearly identified in the will and were in existence at the time the will was executed

Question 13

is it possible for a will which complies with capacity, intention and formalities to be challenged on grounds of mistake, duress or undue influence?

Answer 13

yes

Question 14

where a challenge is made on grounds of duress or undue influence, what will the challenger need to prove?

Answer 14

that the testator was acting under coercion/undue influence and not of their own volition

there’s a heavy BOP and generally there must be no other explanation for the testators behaviour than a form of duress

Question 15

what is a general legacy?

Answer 15

a gift of an item irrespective of whether the deceased owned that item at death

i give 50 shares in ABC Plc to X

Question 16

what is a specific legacy?

Answer 16

a gift of a particular asset owned by the deceased at death

i give all my shares in ABC Plc to C

Question 17

what is demonstrative legacy?

Answer 17

a general gift paid out of a specific fund

I give £100 to be paid from my barclays account

Question 18

what is pecuniary legacy

Answer 18

a gift of a fixed sum of money

i give £100 to X

Question 19

what is residuary legacy

Answer 19

the whole, or part, of what remains of a persons estate once all gifts, debts taxes and other costs have been paid

Question 20

I give all my shares in ABC Plc to X - what legacy is this

Answer 20

specific legacy

Question 21

I give £100 to be paid from my barclays account - what legacy is this?

Answer 21

demonstrative legacy

Question 22

I give £100 to X - what legacy is this

Answer 22

pecuniary legacy

Question 23

I give 50 shares in ABC Plc to X - what legacy is this

Answer 23

general legacy

Question 24

what is the principle which states that the testator is always able to revoke their will at any point before their death

Answer 24

testamentary freedom

Question 25

what are the three ways a will can be revoked?

Answer 25

destruction revocation by a later will/codicil marriage/civil partnership

Question 26

revoking the will via destruction

Answer 26

the testator 'burning, tearing or otherwise destroying' the will ... or someone else doing so in the testators presence and by their direction revokes a will as long as the testator intends this revocation by the act of destruction

Question 27

revocation by a later will/codicil - what are the two ways this can be done

Answer 27

1) the testator can include an express revocation clause - I hereby revoke all my former wills

Question 28

without a revocation clause, the later will only revokes the former will to what extent

Answer 28

to the extent that the later will is inconsistent with the former will

Question 29

a will can be revoked by marriage/civil partnership

Answer 29

a testator marrying or entering into a civil partnership will automatically revoke any will made previously - unless the testator makes it expressly clear that the will should have effect after the marriage or where the marriage is itself the conversion of a civil partnership.

Question 30

what is meant by codicil

Answer 30

susbsequent valid alterations to a will are known as codicils

Question 31

in order for codicils to be valid, they must..

Answer 31

be properly executed, complying with all of the same formalities as the original will

Question 32

who must any manuscript amendments to the will be signed by

Answer 32

the testator two witnesses or they can add their initials next to the amendment if this is done it will raise a presumption that the changes were made prior to the execution of the will

Question 33

where an alteration is invalid, and the original wording remains apparent - which wording will be admitted to probate

Answer 33

the original wording of the will is admitted to probate (ie that remains valid)

Question 34

where an alteration is invalid, but the original wording is not apparent, the will is normally admitted to probate with the original wording 'obliterated' - what does this mean

Answer 34

the clause can't take effect

Question 35

where an alteration is invalid, but the original wording is not apparent, the will is normally admitted to probate with the original wording 'obliterated' (the clause cant take effect) what is the exception to this

Answer 35

if the obliteration is accompanied by an attempt to substitute other wording - in which case the court may hold that the obliteration was conditional on the substitution taking effect

Question 36

as the substituted wording is ineffective, the original wording is not obliterated provided that there is evidence of ...

Answer 36

evidence of what the original wording was

Question 37

the court will consider any evidence available to establish the original wording, including a copy of the original will - true or false

Answer 37

true

Question 38

failure of legacies (gifts)

Answer 38

lapse uncertainty ademption beneficiary witnessing the will disclaimer divorce/dissolution of civil partnership forfeiture

Question 39

A gift will usually fail if the beneficiary predeceases the testator - true or false

Answer 39

true

Question 40

A gift will usually fail if the beneficiary predeceases the testator however if the beneficiary is the issue of the testator, instead of lapsing the gift will usually pass to..

Answer 40

the beneficiary's issue unless the will expressly excludes this option

Question 41

what is the presumption where two people die simultaneously

Answer 41

the younger is presumed to have survived the elder

Question 42

how can a gift fail due to uncertainty

Answer 42

a gift will fail either if the objects (beneficiaries) or subject matter is uncertain

Question 43

where the testator makes a specific legacy, it will fail if..

Answer 43

that specific item of property isn't part of the testator's estate at the time of their death

Question 44

for ademption to apply, there must have been a change of ...

Answer 44

there must have been a change of substance, not merely a change of name or form

Question 45

what is the ruling on a beneficiary or a spouse witnessing the will

Answer 45

if a beneficiary or their spouse witnesses the will - any gifts to the beneficiary will lapse unless there were two witnesses to the will other than the beneficiary or their spouse

Question 46

a solicitor may be negligent if they allow a beneficiary to witness the will - true or false

Answer 46

true

Question 47

can a beneficiary disclaim a legacy

Answer 47

yes (ie refuse to accept the legacy if they have yet to take any benefit from it)

Question 48

following divorce or anulment of a civil patnership - why does the gift lapse

Answer 48

because following divorce or anulment of a civil partnership, any gift to a former spouse or civil partner is treated as if the spouse or partner had predeceased the testator , therefore the gift lapses

Question 49

following divorce or anulment of civil partnership, any gift lapses, what happens to the remainder of the will

Answer 49

it remains unaffected

Question 50

can a beneficiary receive an inheritance from anyone that the beneficiary has been convicted of murdering

Answer 50

no there may be circumstances where the beneficiary could inherit if the beneficiary has been convicted of manslaughter of the testator

Question 51

what does the effect of a failed legacy depend on

Answer 51

the type of legacy

Question 52

where a specific, general or demonstrative legacy fails, does the property form part of the residue of the estate?

Answer 52

yes

Question 53

where a residuary legacy fails, is their partial intestacy?

Answer 53

yes - where possible the courts will interpret wills to avoid a partial intestacy arising

Question 54

under which act can an application be made to the court for reasonable financial provisions to be made

Answer 54

IFPDA inheritance provision for family and dependants act 1975

Question 55

an application to the court can be made by a limited group of people - applicants must fall within one of the categories in s1 IPFDA what are these categories

Answer 55

- spouse or civil partner of the deceased - a former spouse who hasn't remarried - someone who had been in a relationship with the deceased for at least 2 years before the death of the deceased - child of the deceased (including one over aged 18) - a person who was treated as a child of the family and to whom the deceased stood in the role of parent (this includes people over 18 at the time of death) - anyone who was maintained, wholly or partly, by the deceased immediately before their death

Question 56

what is the time limit for an application to be made under s1 IPFDA 1975

Answer 56

applications must be made within six months from the issue of the grant

Question 57

is special leave of the court required for an out of time application under s1 IPFDA

Answer 57

yes the court may extend time limits at its unfettered discretion

Question 58

grounds for an application under s1 IPFDA

Answer 58

do the will or the intestacy rules make reasonable financial provisions (RFP) for the applicant?

Question 59

what constitutes RFP depends on the applicant, but the test is always subjective on what standards

Answer 59

- surviving spouse standard - maintenance standard

Question 60

surviving spouse standard - reasonable financial provision

Answer 60

such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance (applied to claims by the surviving spouse/civil partner only)

Question 61

maintenance standard

Answer 61

such financial provisions as it would be reasonable in all the circumstances of the case for he applicant to receive for his (sic) maintenance applied to claims by anyone other than the surviving spouse or civil partner

Question 62

the guidelines are set out in the legislation - what are the considerations for the court

Answer 62

- financial resources and needs of the applicant immediately and in the foreseeable future - obligations owed by the deceased to the applicant - size and nature of the deceaseds estate the court can order periodic payments, lump sums or property transfer

Question 63

Personal Reps - they should consider carefully whether they should distribute the estate before the time to make an application under IPFDA has expired - if they wrongly distribute they could be personally liable - true or false

Answer 63

true

Question 64

is it possible for potential applicants to do a standing search to see if a grant has been made

Answer 64

yes PRs may choose to take out insurance against any potential claims