Drafting Wills Flashcards
When preparing a will, what should the wording be like?
- Clear, concise and unambiguous
- Colloquial and technical language should be avoided
- Drafted without punctuation
- Common to capitalise the words which explain the purpose of the clause. eg. I GIVE, I APPOINT
- Number the paragraphs and use sub-clauses
What is included in the Introductory clauses - in order
- Commencement
- Revocation
- Burial/funeral wishes
- Appointment of executors & trustees
- Appointment of guardians
What is included in clauses disposing of property
- Specific gifts
- General gifts
- Pecuniary gifts
- Residuary gifts
What clauses are typically at the end of a will?
- Administrative clauses
- Date & Attestation
What is a Commencement clause
- Identify the testator, full name and address. occupation is sometimes added.
- If testator is known by another name that should be referred to
- If the testator owns assets in another name the grant of representation must refer to each possible alias otherwise it will not be possible to administer all of the estate.
- The date can be included in the commencement or at the end of the will.
What is a Commencement clause example?
I TOM JAMES JONES sometimes known as JAMES JONES of [ ] a solicitor declare this to be my last will and testament
What is a Revocation clause
- A revocation clause can be included as part of the commencement or as a separate
clause. - Ensures that all previous wills/codicils (both are testamentary documents) are
revoked so only one valid will exists at any one time. - A will is valid without a revocation clause but should be included to avoid uncertainty.
- If a testator has more than one valid will the latter will impliedly revoke the earlier will but to the extent that it is inconsistent with or merely repeats the terms of the earlier will.
- There are other methods of revoking a will either in whole or in part.
For example by codicil, in the event of a testator’s marriage/divorce, or its destruction of the will, or making effective manuscript amendments.
However, the most common form of revocation is express revocation by way of a later will.
What is a Revocation clause example
I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will
What is a Burial & Funeral wishes clause
- Many testators want to direct what should happen to their body after their death and have specific funeral and burial instructions they would like followed. These clauses are usually inserted at the start of the will before the operative provisions.
- The instructions are not legally binding on the personal representative (‘PRs’) but
will normally be followed where possible.
What is a Burial & Funeral wishes clause example?
I WISH for all burial and funeral arrangements to conform with Bahá’í law and tradition
What is the role of a personal representative (PR)?
- A PR collects the deceased’s assets and administers the estate (s.25 Administration of Estates Act)
- They must pay the deceased’s debts, administration costs and expenses and distribute assets to the correct beneficiaries
What are executors
- A PR appointed by will is called an executor and their power to act derives from the will
- A testator is free to choose their executor. Exceptions are minors or someone who lacks mental capacity
- An executor who is bankrupt can act but is unwise because they are unable to perform all PR duties
What if a will does not appoint an executor?
The Non-Contentious Probate Rules determine who acts as PR
A PR appointed by the NCPR is an administrator
How many can be people be executors
- Minimum of 1 executor is required
- Better to appoint at least 2 in case a sole executor becomes deceased or is unwilling/unable to act
- Maximum of 4 can apply for the grant of representation
- If more then 4 are named in the will, power is ‘reserved’ to those who do not apply initially
Who can act as executors
- Surviving spouses or close family members can
- The testator should obtain consent from the
