Drafting Flashcards
Define testamentary freedom in the context of wills.
Testamentary freedom refers to the ability of a testator to leave their property to whomever they choose without specific wording or form required.
Describe the age requirement for a testator to make a valid will under the Wills Act 1837.
A testator must be aged 18 or over to make a valid will, with the exception of those in military service.
List the four requirements a testator must meet to demonstrate testamentary capacity according to Banks v Goodfellow.
- 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.
Describe the nature of the act a testator must understand when signing a will.
A testator must understand that they are signing a document that takes effect upon their death and disposes of their property.
How does Parker v Felgate establish an exception to testamentary capacity?
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.
Describe the ‘golden rule’ established in the case of Kenward v Adams.
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.
Is compliance with the ‘golden rule’ mandatory?
No, compliance with the ‘golden rule’ is not a legal obligation but is considered best practice.
Who bears the burden of proof of capacity in will probate?
The burden of proof of capacity lies with the propounder of the will, usually the executor.
What happens if evidence is provided to challenge a will’s validity?
If evidence is provided, the presumption of capacity is rebutted, and the burden of proof reverts to the propounder of the will.
What is the significance of section 18(1) of the MCA 2005 in relation to wills?
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.
What practical steps must a testator take to demonstrate knowledge and approval of their will?
A testator must read their will, understand it, and by their signature, intend to give effect to its terms.
When must knowledge and approval be present for a will to be valid?
Knowledge and approval must be present at the time of execution, unless the exception in Parker v Felgate applies.
Describe the presumption of knowledge and approval in relation to a testator’s will.
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.
Identify situations where there is no presumption of knowledge and approval.
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.
What are the formal requirements of executing a
the formal requirements for executing a will, which include being in writing, signed by the testator, and witnessed.
Describe the role of an affidavit of knowledge and approval in the probate process.
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.
Define the attestation clause in the context of a will.
The attestation clause explains the circumstances under which the will was executed and can address issues of knowledge and approval.
Describe the attestation clause for a blind testator.
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.
What happens if only part of a will is influenced unduly?
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.
Can a court modify a will that has parts influenced by undue influence?
No, the court cannot add or substitute words in a will, even if parts of it are influenced by undue influence.
How is the burden of proof related to undue influence claims?
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.
Explain the relevance of the testator’s will being fair in undue influence cases.
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.
How does the mental state of a testator affect claims of undue influence?
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.
Describe the formal requirements for a valid will according to the Wills Act 1837.
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.
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.
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.
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.
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.
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.
How must witnesses sign a will in relation to the testator?
Witnesses must sign the will in front of the testator.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Explain the implications of 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.
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.
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.
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.
