Drafting Flashcards
1
Q
Define testamentary freedom in the context of wills.
A
Testamentary freedom refers to the ability of a testator to leave their property to whomever they choose without specific wording or form required.
2
Q
Describe the age requirement for a testator to make a valid will under the Wills Act 1837.
A
A testator must be aged 18 or over to make a valid will, with the exception of those in military service.
3
Q
List the four requirements a testator must meet to demonstrate testamentary capacity according to Banks v Goodfellow.
A
- Understand the nature of the act and its effects.
- Appreciate the extent of the property they are disposing of.
- Understand and appreciate the moral claims they ought to give effect.
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties.
Testament - DEMoN
Disorder of the mind, Extent of property, Moral claims, Nature of the act
4
Q
Describe the nature of the act a testator must understand when signing a will.
A
A testator must understand that they are signing a document that takes effect upon their death and disposes of their property.
5
Q
How does Parker v Felgate establish an exception to testamentary capacity?
A
Parker v Felgate allows a testator who lacks testamentary capacity at the time of execution to still create a valid will if they had capacity when giving instructions, the will was prepared according to those instructions, and they understood they were signing a will.
6
Q
Describe the ‘golden rule’ established in the case of Kenward v Adams.
A
The ‘golden rule’ states that when taking instructions for a will from an elderly or seriously ill client, a medical practitioner should assess the testator’s capacity and make a contemporaneous record of the assessment.
7
Q
Is compliance with the ‘golden rule’ mandatory?
A
No, compliance with the ‘golden rule’ is not a legal obligation but is considered best practice.
8
Q
Who bears the burden of proof of capacity in will probate?
A
The burden of proof of capacity lies with the propounder of the will, usually the executor.
9
Q
What happens if evidence is provided to challenge a will’s validity?
A
If evidence is provided, the presumption of capacity is rebutted, and the burden of proof reverts to the propounder of the will (executor)
10
Q
What is the significance of section 18(1) of the MCA 2005 in relation to wills?
A
Section 18(1) of the MCA 2005 allows the court to authorize the execution of a will for an adult who lacks the capacity to make one themselves.
11
Q
What practical steps must a testator take to demonstrate knowledge and approval of their will?
A
A testator must read their will, understand it, and by their signature, intend to give effect to its terms.
12
Q
When must knowledge and approval be present for a will to be valid?
A
Knowledge and approval must be present at the time of execution, unless the exception in Parker v Felgate applies.
13
Q
Describe the presumption of knowledge and approval in relation to a testator’s will.
A
Knowledge and approval are presumed if the testator had testamentary capacity and the will was executed according to the requirements of s 9 Wills Act 1837.
14
Q
Identify situations where there is no presumption of knowledge and approval.
A
There is no presumption of knowledge and approval if the testator is blind or illiterate, if the will was signed by someone on behalf of the testator, or if there are suspicious circumstances.
15
Q
What are the formal requirements of executing a will?
A
the formal requirements for executing a will, which include being in writing, signed by the testator, and witnessed.
16
Q
Describe the role of an affidavit of knowledge and approval in the probate process.
A
An affidavit of knowledge and approval is usually needed when submitting a will to probate if there is no presumption of knowledge and approval and the attestation clause does not address this.
17
Q
Define the attestation clause in the context of a will.
A
The attestation clause explains the circumstances under which the will was executed and can address issues of knowledge and approval.
18
Q
Describe the attestation clause for a blind testator.
A
The attestation clause states that the will was signed by the testator (T) in the presence of both witnesses, and then by the witnesses in T’s presence after the document had been read over by A to T, who seemed to thoroughly understand and approve the contents.
19
Q
What happens if only part of a will is influenced unduly?
A
If only part of a will is made under undue influence, the remaining parts may still be valid as long as the omissions do not disrupt the overall intent of the will.
20
Q
Can a court modify a will that has parts influenced by undue influence?
A
No, the court cannot add or substitute words in a will, even if parts of it are influenced by undue influence.
21
Q
Who has the burden of proof relating to undue influence claims?
A
The burden of proving undue influence lies with the person making the allegation, and the court requires evidence that is inconsistent with any other hypothesis.
22
Q
Explain the relevance of the testator’s will being fair in undue influence cases.
A
Whether the court considers the testator’s will to be fair is irrelevant; the key question is whether the testator acted ‘as a free agent’ in executing the will.
23
Q
How does the mental state of a testator affect claims of undue influence?
A
A weak or ill testator may be more susceptible to undue influence, as they might be induced to act against their will for the sake of a quiet life.
24
Q
Describe the formal requirements for a valid will according to the Wills Act 1837.
A
A valid will must be in writing, signed by the testator or by another person in their presence and by their direction, show that the testator intended to give effect to the will by their signature, and be signed in the presence of two or more witnesses who either attest and sign the will or acknowledge their signature in the presence of the testator.
25
Define the role of witnesses in the execution of a will as per the Wills Act 1837.
Witnesses must either attest and sign the will or acknowledge their signature in the presence of the testator, but they do not need to be present when the other witnesses sign.
26
How can a testator's signature be valid if they are physically unable to sign?
If a testator is physically unable to sign themselves, they can authorize another person to sign on their behalf, provided it is done in their presence and by their direction.
27
How does the placement of a signature affect the validity of a will?
Signatures at the beginning or in the middle of a will can be problematic, while a signature at the end typically confirms the testator's intention.
28
How should the details of witnesses be recorded in a will?
The full name, addresses, and occupation of each witness should be noted to provide evidence if the will is contested.
29
What conditions disqualify someone from acting as a witness to a will?
Minors, individuals who are blind, drunk, or of unsound mind should not act as witnesses.
30
How must witnesses sign a will in relation to the testator?
Witnesses must sign the will in front of the testator.
31
What is typically included in an affidavit of due execution?
An affidavit of due execution typically includes a statement from the witnesses confirming that the will was signed by the testator in their joint presence.
32
Describe the effect of Section 15 of the Wills Act 1837 on gifts to attesting witnesses.
Gifts to an attesting witness **or their spouse** are void, meaning if a beneficiary or their spouse acts as a witness, they cannot inherit under the will.
33
How can the effect of Section 15 be disregarded?
The effect of Section 15 can be disregarded if there are at least two other witnesses not caught by Section 15, or if the will is confirmed by a properly executed codicil.
34
What does Section 28(4)(a) of the Trustee Act 2000 state regarding professional executors?
Section 28(4)(a) confirms that Section 15 will not apply to the remuneration a professional executor receives for their services.
35
Define the common practice regarding the appointment of executors and trustees.
It is common to appoint the same person(s) as both executor and trustee, although it is not necessary.
36
How does the creation of a trust differ when established by a will versus a lifetime trust?
A trust created by a will is established through the will itself, while a lifetime trust is created through a separate trust deed.
37
What is the significance of the standard provisions produced by STEP?
The standard provisions produced by STEP are nationally recognized and widely used in practice, providing a reliable framework for wills and trusts.
38
What might trigger the creation of a trust even if none is explicitly stated in a will?
A trust may arise if executors cannot distribute all of the estate, such as when a beneficiary is a minor or there are contingent interests that have not been satisfied.
39
What considerations should be made regarding financial provisions for a guardian?
Consider whether any financial provision, such as a legacy, is appropriate for the guardian, which could be paid only if the guardian is appointed.
40
How should a testator ensure the proposed guardian is willing to accept the role?
The testator should obtain consent from the proposed guardian(s) to confirm they are willing to act in the role of guardian, as acceptance is not mandatory.
41
Describe the process for appointing a legal guardian for infant children by a testator.
A testator with parental responsibility may appoint a legal guardian for their infant children through a will, as per section 5 of the Children Act 1989. This appointment typically takes effect after the death of the surviving parent.
42
What happens if a testator appoints 'any one partner' as an executor?
Appointing 'any one partner' is considered void for uncertainty, as it does not specify which partner.
Either identify the partner by name (not recommended as partner may leave the firm) or state name of firm to act as executor- as long as they are not a partnership
43
Explain the implications of a law firm changing its structure after a testator's death.
If a law firm changes its name, merges, converts to an LLP, or incorporates, the appointment of the partners at the time of the testator's death still applies to the firm that carries on its practice.
44
What should a testator avoid when appointing a specific partner from a law firm?
A testator should avoid a personal appointment of a specific partner, as that person may no longer practice or work at the firm.
45
can a partnership be an executor
A partnership does not have a separate legal identity distinct from its partners, meaning it cannot be appointed as an executor or trustee.
46
Explain the significance of the revocation clause in a will.
The revocation clause serves to invalidate any previous wills or codicils, ensuring that only the most recent document is considered valid.
47
How many trustees are typically appointed in a trust involving minor beneficiaries?
At least 2 trustees should be appointed to act in a trust involving minor beneficiaries.
48
How does a qualified appointment affect the grant of representation?
Where the executor’s appointment is qualified, the grant of representation issued in their name will be similarly limited.
49
What does it mean for an executor's appointment to be qualified by type of assets?
It means the executor is responsible only for certain types of assets, such as only business assets.
50
Define the maximum number of executors that can apply for the grant of representation.
A maximum of 4 executors can apply for the grant of representation. If more than 4 are named in the will, power is reserved for those who do not apply initially to apply later if a vacancy arises.
51
How is a personal representative appointed if a will does not name an executor?
If a will does not appoint an executor, the Non Contentious Probate Rules determine who acts as the personal representative, and this person is referred to as an administrator.
52
Do funeral and burial instructions in a will have legal binding on personal representatives?
No, the instructions are not legally binding on the personal representatives but will normally be followed where possible.
53
How should a testator's alias be handled in a will?
If the testator is known by another name, that alias should be referred to in the will to ensure proper administration of the estate.
54
What are introductory clauses in a will?
Introductory clauses provide context and background for the will, often stating the testator's intentions and identifying the testator.
55
What are burial or funeral wishes in the context of a will?
Burial or funeral wishes outline the testator's preferences regarding their burial or funeral arrangements, providing guidance to the executors and family.
56
Describe the role of dispositive clauses in a will.
Dispositive clauses direct who inherits the testator's assets, specify what each person receives, and outline the terms of those gifts.
57
How does the ownership of an item at the time of death affect a specific gift?
If the testator does not own the item referred to in the will at the time of death, the gift adeems, meaning it fails to take effect and the beneficiary receives nothing.
58
Explain the implications of beneficiaries failing to agree on the division of a collection within the specified timeframe.
If beneficiaries fail to agree on the division of a collection within the specified timeframe, the executors will make the decision, which will be final and binding on all parties involved.
59
Do chattels include pets according to the statutory definition?
Yes, chattels include pets as part of the personal items that can be bequeathed in a will.
60
What is the significance of section 55(1)(x) of the Administration of Estates Act 1925 in relation to chattels?
Section 55(1)(x) defines personal chattels, which are the items that can be specifically gifted in a will.
61
Describe the requirements for a testator to give away their interest in a property to a beneficiary.
The property must be identifiable with a full address and registered title number. The clause should state what happens if the property is no longer owned by the testator at their death, and additional considerations include the capability of the property to pass under the will and any third-party interests affecting the property.
62
What is a general legacy
a gift of property which is not distinguished from property of a similar type – e.g. “a” rather than “my”.
63
Will a general legacy fail for lack of clarity
A general legacy does not normally fail because the PRs would have to buy the specified property if it was not part of the estate at death e.g ‘I give a canon camera to…’
64
What is a demonstrative legacy
a type of general legacy (most often pecuniary in nature) which the will directs should be paid out of a specified fund. E.g ‘I give the sum of £500 to be paid from my Natwest Account’
65
Will a demonstrative gift fail if there are insufficient assets in the specified funds.
E.g. £500 to be paid to X from NatWest account
No, the beneficiary is entitled to receive what is left in the fund and to have the balance of the legacy paid as a general legacy.
66
Explain the significance of the date of execution of the will in relation to specific gifts.
The date of execution of the will is significant because it determines the ownership of the gift; the gift is based on what the testator owned at that time, not at their death.
67
How can a beneficiary ensure they receive a replacement asset if the specific gift is no longer available?
A beneficiary can ensure they receive a replacement asset by having an express substitutional gift included in the will.
68
How are shares treated in the context of a will gift?
Shares are treated similarly to collections; for example, a gift of 'my Tesco plc shares' refers to the number of shares owned at the date of death.
69
What happens if a testator does not provide express wording regarding class beneficiaries?
If there is no express wording, the 'class closing' rules apply, and the class closes when the first beneficiary in the class obtains a vested interest.
70
Describe the general rule regarding inheritance tax for individual gifts in a will.
Individual gifts in a will are generally made free of inheritance tax, with the tax payable out of the residue as a testamentary expense.
71
How can a testator specify the treatment of inheritance tax for a gift in their will?
A testator can specify that a gift is to bear its own inheritance tax by expressly stating this in the will.
72
Describe the burden specific beneficiaries bear in the absence of express provisions.
Specific beneficiaries bear the burden of the cost of delivery of the item of property to them and expenses incurred since the date of death in preserving the item or ensuring its upkeep.
73
How can a testator address the costs associated with specific gifts in a will?
The testator may prefer these costs to be paid out of the residuary estate, and if so, the gift should be stated to be 'free of' expenses and/or costs of transfer.
74
Who bears liability for the secured debt once the estate has been administered
According to section 35 of the Administration of Estates Act 1925, unless the will indicates otherwise, the asset charged with a secured debt bears the liability for payment, meaning the beneficiary inherits the property subject to the charge.
75
Describe the effect of a testator relieving property of a charge.
When a testator expressly relieves property of a charge, it becomes a general debt of the estate to be paid out of the residue.
76
Define the overriding principle regarding the construction of a will.
The overriding principle is that the intention of the testator should be given effect to.
77
How does the court handle ambiguity in a will or its clauses?
When the meaning of a will or clause is unclear or ambiguous, the courts can rule on how it should be constructed.
78
Describe the circumstances under which extrinsic evidence may be submitted according to the Administration of Justice Act 1982.
Extrinsic evidence may be submitted if: (a) the will or any part of it is meaningless; (b) the language used in any part of it is ambiguous on the face of it; (c) the will is ambiguous in light of the surrounding circumstances.
79
What happens to a gift if the beneficiary predeceases the testator?
The gift will lapse, subject to s.33 Wills Act 1837.
80
How does the Law of Property Act 1925 affect the presumption of survivorship?
Under s.184, if two people die simultaneously, the presumption is that the eldest died first, determining survivorship.
81
What happens for inheritance tax purposes if order of death is unknown
The deaths are treated as simultaneous. For IHT purposes neither inherits from the other and the estates are taxed separately. Property which in fact passes from the first to die to the second to die is not taxed again in the second estate.
82
What is the status of stepchildren in a testator's gifts to issue?
Stepchildren are not included in a testator's gifts to issue unless the will clearly indicates that they were intended to be included.
83
What is an example of a gift drafted to a class of beneficiaries?
An example is: 'I give absolutely to each of my children the sum of £100'.
84
Who does a class close if no contingency applies
If no contingency applies, the class closes on the date of the testator's death, provided at least one beneficiary satisfies the definition of the class.
85
Describe the implications of a minor having a vested interest in a gift.
If a minor has a vested interest in a gift and dies before reaching the age of 18, the gift belongs to them and will pass into their own estate.
86
What occurs to a pecuniary legacy if the beneficiary pre-deceases the testator?
The pecuniary legacy lapses, and the money that would have been given goes into the residuary estate.
87
Explain the outcome if a gift of the residuary estate lapses due to the beneficiary's pre-decease.
If a gift of the residuary estate lapses, it can create a full or partial intestacy.
88
Describe the conditions under which Section 33 of the Wills Act 1837 (substitution limb) applies to gifts in a will.
Section 33 applies when a will contains a devise or bequest to a child or remoter descendant of the testator, the intended beneficiary dies before the testator leaving issue, and the issue of the intended beneficiary are living at the testator's death.
89
What happens to a gift in a will if the intended beneficiary (testator's child) dies before the testator according to Section 33 Wills Act 1837?
If the intended beneficiary dies before the testator, the gift will still take effect for the issue of the intended beneficiary who are alive at the testator's death, unless the will states otherwise.
90
Describe the considerations a drafter must take into account when leaving a gift to a charitable organization.
The drafter must ensure the organization exists, use its full name and address (plus registered charity number if applicable), consider its registered charity status for inheritance tax implications, provide for name changes or amalgamations, and **specify who can give a valid receipt.**
91
How should a drafter address the potential for a charitable organization to change its name or cease to exist?
The drafter should make express provision in the will for the organization changing its name, amalgamating with another organization, or ceasing to exist.
92
Explain the necessity of specifying who can give a valid receipt for a charitable gift.
Specifying who can give a valid receipt, often the treasurer, is necessary to avoid the impracticality of requiring all members or potential beneficiaries to provide a receipt.
93
Define the term 'cy-pres doctrine' in the context of charitable gifts.
The cy-pres doctrine allows a charitable gift stated for general purposes to be redirected to a different charity with a similar purpose if the original charity cannot accept the gift.
94
Define a codicil in the context of a will.
A codicil is a legal document that modifies, adds to, or revokes provisions in an existing will.
95
Explain the role of letters of wishes in relation to a will.
Letters of wishes provide guidance to executors or beneficiaries regarding the testator's intentions, but they are not legally binding.
96
Describe the criteria for incorporating an unexecuted document into a will.
To successfully incorporate an unexecuted document into a will, the following criteria must be satisfied:
1) The document must exist when the will is executed or at the time a later codicil is made.
2) The will must refer to the document as being in existence at the time of execution.
3) The document must be clearly identified in the will.
97
How does the incorporation of an unexecuted document affect its privacy after the testator's death?
The document will be made public along with the will once it is admitted to probate, contrary to a client's belief that it will remain private.
98
What is the benefit of using STEP provisions in legal documents?
Using STEP provisions allows for the inclusion of standardized administrative clauses without the need for lengthy and technical language in the will or trust deed.
99
What is required to rebut the presumption that alterations were made after the execution of a will?
Express reference to the manuscript amendments is required in both re-executing the amended will or in the subsequent codicil.
100
What should be done with the original gift if it can be ascertained?
If the original gift can be ascertained, it should be given effect to.
101
Define conditional intention to revoke in the context of a will.
A conditional intention to revoke occurs when the testator attempts to substitute another figure for the original wording, and this attempt at substitution has failed.
102
Describe the circumstances under which extrinsic evidence is permitted in the context of a will's revocation.
Extrinsic evidence is permitted if the testator made the obliteration with a conditional intent to revoke the gift.
103
What happens if the original gift can be determined?
If the original gift can be determined, the beneficiary would take their entitlement.
104
How can extrinsic evidence be used in relation to amendments made by a third party?
Extrinsic evidence can be used to establish the original gift if the testator did not intend to revoke it or if a third party made the amendment.
105
How does obliteration impact the distribution of assets in a will?
If the original wording is not apparent due to obliteration, the intended recipient may receive nothing.
106
Describe the effect of obliteration on a will's wording.
Obliteration is treated as an intention by the testator to revoke the original wording, making the alteration effective.
107
How can the presumption regarding the timing of alterations be rebutted?
The presumption can be rebutted by internal evidence from within the will or by external evidence, such as an affidavit of plight and condition signed by witnesses.
108
What happens when a blank space in a legal document is completed?
There is a presumption that the completion of the blank space occurred before the execution of the document.
109
List the three methods a testator can use to amend their will.
A testator can amend their will by creating a new will, adding a codicil, or making manuscript amendments.
110
How can initials be used in the execution of a will alteration?
Initials of the testator and two witnesses are sufficient for the execution of a will alteration.
111
Describe the requirements for a valid alteration to a will according to s.9 WA.
An alteration must be executed like a will, meaning it should be signed by the testator and two witnesses. The witnesses do not need to be the same as those who witnessed the original will.
112
What is required for affidavit evidence to be effective in proving the timing of alterations to a will?
Witnesses must accurately recall the state and condition of the will at the time of execution.
113
What presumption exists regarding the timing of alterations made to a will?
There is a rebuttable presumption that an alteration was made after execution, which would render it invalid.
114
Explain the significance of a testator's knowledge and approval in alterations made before execution.
Alterations made before execution with the testator's knowledge and approval are valid and enforceable.
115
How does an alteration made after execution affect a will?
An alteration made after execution has no effect; the original wording is maintained and submitted to probate.
116
What is interlineation in relation to a will?
Interlineation is the insertion of writing between the existing lines of a document, often used to add something that was previously omitted.
117
Explain the significance of the phrase 'before such alteration shall not be apparent' in the context of the Wills Act 1837.
The phrase 'before such alteration shall not be apparent' indicates that for an alteration to be valid, the original words must not be visible or discernible after the alteration has been made.
118
Are alterations made to a will after execution valid?
Section 21 of the Wills Act 1837 stipulates that alterations made to a will after its execution are not valid unless they are executed in the same manner as the original will.
119
What must a testator comply with to create a valid codicil?
A testator must comply with section 9 of the Wills Act 1837, which includes having testamentary capacity, knowledge, and approval of the codicil and any previous wills or codicils.
120
Define the limitations on the number of codicils a person can create.
There is no legal maximum number of codicils a person can make, but it is advisable to limit the number to reduce confusion.
121
What is a common mistake related to affirming parts of the original will in a codicil?
A common mistake is not affirming the parts of the original will that remain unchanged.
122
What issue arises when a new codicil refers only to the original will?
The issue is that it may not take into account any changes made by previous codicils, leading to inconsistencies.
123
Define the relationship between a codicil and an earlier will.
A codicil will only revoke an earlier will to the extent that there is inconsistency between the two documents.
124
What can be done if inconsistencies arise regarding the date of the will or the number of codicils?
Affidavit evidence can be provided to explain any discrepancies that arise regarding references to the date of the will or the number of codicils.
125
Describe the effect of executing a codicil on a will.
Executing a codicil acts to 'republish' the will and any codicils it refers to, giving effect to the will as if it had been executed on the date of the codicil.
126
What happens if a later codicil is witnessed by different people?
If a later codicil is witnessed by different people, the gift under the original will to the original witness can be given effect to, avoiding the effect of s15 Wills Act 1837.
127
How can a codicil validate an improperly executed will?
If a will or previous codicil was not properly executed according to s 9 Wills Act 1837, the due execution of a codicil can validate the original will or previous codicil to which it refers.
128
How does a codicil affect a testator's status if it revokes a previous will in full without new terms?
If a codicil expressly revokes a previous will in full and contains no new terms, the testator will effectively be intestate.
129
Define the term 'revival' in the context of wills and codicils.
Revival refers to a codicil re-publishing a currently valid will or reviving a previously revoked will if that is the testator's intention.
130
Explain the potential issues with reviving a revoked will.
Reviving a revoked will may cause confusion regarding testamentary documents made in the interim, and if the original will was destroyed, it cannot be revived.
131
What happens if a codicil revokes part of a will and is then subsequently revoked?
If a codicil revokes all or part of a will and is then revoked, this does not automatically reinstate the terms of the will that had been revoked by the codicil.
132
What is required for a revocation of a will to be effective?
Both a physical act of destruction and the intention to revoke the will are required for the revocation to be effective.
133
Define the testamentary capacity needed for revocation of a will.
The testator requires the same testamentary capacity to revoke a will as is needed to make a valid will.
134
How does revocation by destruction differ from simply writing 'revoked' on a will?
A physical act of destruction is needed for revocation; writing 'revoked' on the will is not effective.
135
What evidence is required to admit a copy of a will to probate after destruction of the original?
Affidavit evidence would be required for a copy of the will to be admitted to probate.
136
Describe the process of revoking a will by destruction.
The original will must be destroyed rather than a copy. If another person destroys the will, it is only effective if done at the direction of the testator and in their presence.
137
How does partial destruction of a will affect its validity?
If a testator does not destroy all parts of the will, the effect depends on the remaining parts. The revocation is partial if the will can still operate effectively with the sections that remain.
138
Describe the presumption regarding a missing will after a testator's death.
If a will is missing and it is known that the testator had made one, the testator is presumed to have destroyed the will with the intention to revoke it, unless evidence suggests otherwise.
139
How can a testator ensure their last will is recognized as valid?
By including an express revocation clause that clearly states the intention to revoke all previous wills.
140
How does a later will affect an earlier will in the absence of an express revocation clause?
In the absence of an express revocation clause, a later will may imply the revocation of the earlier will to the extent that they are inconsistent, giving priority to the later will.
141
Describe the concept of mutual wills.
Mutual wills involve two testators who agree to make wills on terms that are mutually accepted, with the stipulation that neither can amend their will without the other's consent.
142
What happens if a testator revokes their will contrary to a mutual agreement?
If a testator attempts to revoke their will against a mutual agreement, equity may impose a constructive trust over their property based on the previously agreed terms.
143
What is the potential outcome if the survivor of a mutual will changes their will after the first spouse's death?
If the survivor changes their will after the first spouse's death, and it is deemed unconscionable, equity may impose a constructive trust to uphold the original agreement.
144
Describe the difference between mutual wills and mirror wills.
Mutual wills involve an agreement between two parties not to revoke their wills, while mirror wills are simply wills of a couple that reflect each other's intentions without such an agreement.
145
What is a key characteristic of executing a mirror will?
Executing a mirror will does not create an agreement that prevents either party from revoking their will later.
146
Describe the effect of Section 18 of the Wills Act 1837 on a will made prior to marriage.
Section 18 of the Wills Act 1837 automatically revokes any will (and codicil) made prior to marriage, regardless of the testator's intention.
147
Describe the process to avoid will revocation after marriage or civil partnership.
To avoid will revocation after marriage or civil partnership, the will must be drafted in contemplation of the marriage/civil partnership, naming the future spouse/civil partner, identifying the intended ceremony, and including express wording that the testator does not wish for the will to be revoked.
148
Identify situations where a will cannot be drafted in contemplation of marriage.
A will cannot be drafted in contemplation of marriage for a hypothetical marriage or if the testator intends to marry or enter a civil partnership with someone other than the person named in the will.
149
Define the implications of a new will made in contemplation of marriage or civil partnership.
In the absence of express wording to the contrary, the new will takes effect even if the marriage or civil partnership ceremony does not occur.
150
Describe the effect of a will that is effective from execution and not revoked by the testator’s later marriage.
Such a will remains valid and enforceable even if the testator gets married after its execution.
151
Describe the implications of a will that is effective only upon marriage.
Such a will will not have any legal effect until the specified marriage occurs, meaning the testator's wishes are not enforceable until that event.
152
How does a court order confirming a divorce affect the appointment of an executor in a will?
The appointment of the former spouse as executor or trustee is not effective after the divorce.
153
What happens to gifts in a will made to a former spouse after divorce?
Gifts in the will to the former spouse will fail after the divorce.
154
Describe the effect of s.18A/C on the appointment of executors in a will after a divorce
The effect of s.18A/C depends on the wording of the will. If more than one executor is named, the remaining executor can be appointed. If the spouse or civil partner is the sole executor, a statutory order is followed, and an administrator will be appointed in the absence of any acting executor.
