MCQ Flashcards
Is there a statutory definition for a will?
No
What is a will
‘a document by which a person (called the testator) appoints executors to administer his estate after his death and directs the manner in which it is to be distributed to the beneficiaries he specifies’ - Explanatory notes to Trustee Act 2000, glossary of terms (Annex A)
What are the three requirements for a will under the Wills Act 1837
Capacity
Intention
Formalities
How do you have capacity
Being of age (s.7 of Wills Act 1837 as amended by the Family Law Reform Act 1969, s,3(1)) and having a mental capacity (Mental Capacity Act 2005, s1(2))
What statute states you need to be 18 to make a will (or 16 for a privileged will)
s.7 of Wills Act 1837 as amended by the Family Law Reform Act 1969, s,3(1)
What statute states that mental capacity is assumed
Mental Capacity Act 2005, s1(2)
What statute states that a person lack mental capacity if at the material time is unable to make a decision themselves
Mental Capacity Act 2005, s2(1)
What is the case authority for the golden rule
Kenward v Adams
What is the golden rule
When a solicitor draws up a will for an aged or seriously ill testator, it should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings.
What case states that the golden rule isn’t a rule of law but provides guidance as to a means of avoiding disputes
Burns v Burns [2016] EWCA Civ 37 [47]
What case states that even if you do follow the golden rule, a will may still be challenged
Sharp v Adam [2006] EWCA Civ 449
What case states the the death was the event that was to give effect to the will
Milnes v Foden (1890) 15 PD 105, at 107 per The President
What case states that a will is to take immediate effect after its execution
Corbett v Newey [19987] Ch 57 at 70 per Waite LJ
Where can the formalities for a will be found
Wills Act 1837 s9
as amended by Administration of Justice Act 1982, s17
What statue states that the will must be in writing, and signed by the testator, or by some other person in his presence and by his direction
S,9(a) of Wills Act 1837
What does s.9(a) of Wills Act 1837 say
A will must be in writing, and signed by the testator, or by some other person in his presence and by his direction
What case states that the will must be in writing (s.9(a) Wills Act 1837), even if on an eggshell
Hodson v Barnes (1926) 43 TLR 71
What case states that the will must be in writing (s.9(a) Wills Act 1837), even if in french
Whiting v Turner (1903) 89 LT 71
What case states that the will must be in writing (s.9(a) Wills Act 1837), even if partly in pencil
In the Goods of Adams (1872) LR 2 P&D 367
What case states that the will must be signed by the testator (s.9(a) Wills Act 1837), even if it is their initials
In the Goods of Chalcraft [1948] P 222
What case states that the will must be signed by the testator (s.9(a) Wills Act 1837), even if it is as ‘your loving mother’
Re Cook [1960] ALL ER 689
What case states that the will must be signed by the testator (s.9(a) Wills Act 1837), even if it is as a thumbprint
Re the Estate of Finn 1935 ALL ER Rep 419
What statute states that the testator intends to give effect to their will through their signature
s9(b) Wills Act 1837
What case states that if attestation clause present strongest evidence required to show will not validly executed (s9(b) Wills Act 1837 - in writing)
Sherrington v Sherrington [2005] EWCA Civ 326
What case states that evidence that the signing and the contents of the will had been created ‘in one single operation’ (s9(b) Wills Act 1837 - in writing)
Wood v Smith [1993] Ch 90
What statute states that a testator’s signature is to be made…in the presence of two or more witnesses present at the same time
s.9(c) Wills Act 1837
What case states that the witness doesn’t need to understand the contents of the document they are signing but do need to understand that they are signing a will as a witness (s.9(c) Wills Act 1837)
Sherrington v Sherrington [2005] EWCA Civ 326
What is an attestation clause
Clause in a lease prepared by a profession/solicitor where a person signs, what the courts do is set out the formalities of the will
Do the witnesses need to be present at the same time when signing the will (s.9(c) Wills Act 1837)
Yes
What statute states that each witness either attests and signs OR acknowledges his signature in the presence of the testator…
s.9(d) Wills Act 1837)
Can a beneficiary be a witness to a will
The validity of the will itself will remain intact
s.15 Wills Act 1837 (as amended):
Gift in will fails if beneficiary or beneficiary’s spouse / civil partner is a witness to the will unless there is another witnesses who aren’t beneficiaries
Does a gift in a will fail if the beneficiary’s spouse or civil partner is a witness
Only makes gift fail if married / in civil partnership at date of execution of the will - s.15 Wills Act 1837
How can gifts affected by s.15 Wills Act 1837 (beneficiary as witness)
By a codicil codicil (an addition to the will to the same formalities of the will) which is independently witnessed
What 6 things should go in a will
- Commencement clause
- Revocation clause
- Date
- Appointment of executors
- Legacies and/or gifts of 5. residue
- Attestation clause
.What is a commencement clause
Clause which sets out the testamentary intention; will show the clients intention to create a will – ‘this is the last will and testamentary of’
What is a revocation clause
A clause which will revoke the former will – need an express clause that it will revoke all other wills from before
What is a date clause
Found at start of will or at the end; very important to have one as a lot of requirements are from when the will was signed (mental capacity from when the will was signed)
What is the appointment of executors
The executors administered to appoint after death; individual who administers an individuals estate after their death
Who is the executor
Individual who administers a deceased person’s estate… having been appointed in the will
What is the maximum number of executors you can have
4 - s.114(1) Senior Courts Act 1981
What statute states the maximum number of executors you can have is 4
s.114(1) Senior Courts Act 1981
What statute outlines the rules that would be done if there are no valid executors to a valid will (where who can administer the estate will go to the grant of representation)
Non-contentious Probate Rules 1987
rule 20 and rule 22
What is a legacy?
Gifts when died
What is a gift of residue
What is left over once gift is paids and balance is paid
What is a specific legacy
Gift of a specific item of property – distinguished to all other property . Doesn’t need to be specific
e.g. I give all of the jewellery in my jewellery box to my daughter Ameera
What is a general legacy
Gift of property not distinguish from similar property of the testator but is to be paid out of the testator’s estate (contrasts specific legacy)
e.g. I give £10,000 to my brother Jasper
What is a demonstrative legacy
Fusion of specific and general.
Doesn’t relate to specific asset but tells you the source of where to get it from
e.g. I give £125 payable from my savings account with TSB Bank to my nephew George
What is a pecuniary legacy
A gift of money
Would usually be general in character but can be specific or demonstrative; matters because of the rule of ademption
e.g. Usually general in character: e.g. £5000 to my brother Jacob
Can be specific; e.g. the £5000 which I keep in my safe to my brother Jacob
Can be demonstrative: e.g. £5000 payable from my current account at Hallam Bank
What is the word used when a testator no longer owns the specific property the gift was
Adeemed
Which legacy does ademption apply
Specific legacy
Does ademption effect general and demonstrative legacies?
No
What is a lapse
what happens if the beneficiary dies before the testator dies
If this happens then the gift would lapse unless there is a substitutional clause (states who will benefit if the beneficiary dies)
What does s.33 Wills Act 1837 govern
Statute creating the substitution clause where the gift can be taken
Only applies to gifts to child or issue children of testator
If the beneficiary dies and there is no substitutionak clause then by statute where would it go
it would go to the child or grandchild – a direct lineal descendant under s.33 wills act 1837
How can a will be revoked
A will can be revoked anytime during the testators lifetime – this is a concept of mutual wills
You can revoke a will: automatically or by the deliberate intention of testator
Does getting married revoke a will
Yes under s.18 Wills Act 1937 or 18b for civil partnership unless you state otherwise in your will
What statute states that marriage will revoke a will
s.18 Wills Act 1937 or 18b for civil partnership
What statute sates that divorce or nullity of marriage will cancel spouse as executor or trustee and will be prevented from benefiting from the will
s18A(1) Wills Act 1837
What statute sates that dissolution or nullity of civil partnership will cancel partner as executor or trustee and will be prevented from benefiting from the will
s18C Wills Act 1837
What does s.18 Wills Act 1937 or 18b for civil partnership state
That marriage will revoke a will
What does s18A(1) Wills Act 1837 state
Divorce or nullity of marriage will cancel spouse as executor or trustee and will be prevented from benefiting from the will
What does s18C Wills Act 1837 state
Dissolution or nullity of civil partnership will cancel partner as executor or trustee and will be prevented from benefiting from the will
What statute governs that you can destroy a will with an act of destruction and the intention to revoke the will
s20 Wills Act 1837
What does s20 Wills Act 1837 state
You can destroy a will with an act of destruction and the intention to revoke the will
What statute governs the rules of intestacy
Administration of Estates Act 1925, s46 as amended by the Inheritance & Trustees Powers Act 2014, s1
What is partial intestacy
Where someone dies with a valid will but it does not dispose of all of their estate
What is a grant of representation
The document that allows personal representatives to start administering estate after someone has died and you cant get a background representation (document to administer estate after someone has died) until you have dealt with inheritance tax
What is inheritance tax
Inheritance tax is charged on the value transferred by a chargeable transfer - s.1 of the Inheritance Tax Act (IHTA) 1984
aka A charge which arises upon a person’s death
What is inheritance tax charged on
The tax is charged on an individuals estate
a. The person who had died does not pay when you have died because you have died
b. The tax is charged on the deceased individuals estate
- Inheritance tax can arise on certain lifetime gifts
a. Money or other assets that you gift away during your lifetime
What statue defines inheritance tax
s.1 Inheritance Tax Act (IHTA) 1984
What statue defines ‘chargeable transfer’
s.2 Inheritance Tax Act (IHTA) 1984
What is a chargeable transfer
A transfer for value that is not exempt - Inheritance Tax Act (IHTA) 1984
What statute defines ‘transfer for value’
s.3 of the IHTA 1984
What is a transfer for value
One which results in a loss to the testators estate - s.3 of the IHTA 1984
What is a relief
Something which can reduce the amount of inheritance tax a persons estate is liable to pay
When is inheritance tax chargeable
- Death
2. Gifts which have been made within/prior to seven years of death
What is the nil rate band charged at
0% up to £325k
What percentage is lifetime chargeable transfers charged at
20% and payable when the transfer is made during the lifetime of the testator
Who does the NRB apply to
Every person estate is allowed to get to a certain value and attract no Inheritance Tax (that value is currently £325,000)
Who can transfer their unused NRB upon death
Spouses or civil partners
What kind of transfer is a spouse transferring all the estate to another spouse
Exempt transfer - not taxable
Who does the residence nil rate band apply to
If the testator (deceased) leaves their family home to their direct lineal descendants (currently at £150k)
If you leave your home to your kids or grandkids, how much would the estate need to be worth before it was taxed
£475k (NRB (£325,000) + RNRB (£150,000))
Who can pass on RNRB
Between the first spouse or civil partners if they didn’t use it by not leaving the family home to the kids
What section of the IHTA 1984 states that transfers to spouses or civil partners are exempt
S.18 of IHTA 1984
What section of the IHTA 1984 states that gifts to charities are exempt
s.23 of IHTA 1984
For deaths after 6 April 2012, if you gifted at least 10% of your estate to charity, what percentage would your inheritance tax be
Would reduce from 40% to 36%
What section of IHTA 1984 states that gifts for political purposes/parties are exempt
s.24 IHTA 1984
What section of IHTA 1984 states that gifts for national purposes are exempt
s.25 IHTA 1984
How long must a donor survive after giving a gift for that gift to be exempt
7 years for the gift to be fully exempt, if they die before the 7 years then the gift will be added back to the deceased estate and taxed
Where do specific reliefs apply
- Business property relief
- Agriculture property relief
- Woodlands relief
What is intestacy
a reference to someone who has died without leaving a valid will or who has failed to dispose of his entire estate by will, for example, ‘he died intestate’
aka the law which dictates where your estate would be distributed and to whom
What statute governs the certain order of how proceedings are carried out for intestacy
Administration of Estate Act 1925, s.46 and 47
What section of the Administration of Estate Act 1925 sets out the order of entitlement
s.46 Administration of Estate Act 1925 as amended by the Inheritance & Trustees Powers Act 2014 s.1
What section of the Administration of Estate Act 1925 sets out the rules for the ‘statutory trusts’ which may apply if those entitled are
- Issue of the testator (children, grandchildren, great grandchildren etc)
- Brothers and sisters/half brothers and sisters
- Uncles and Aunts/ half Uncles and aunts
s.47 Administration of Estate Act 1925
What happens if the married intestate leaves with no children (s.46 Administration of Estate Act 1925)
The spouse will get everything
What happens if the intestate leaves spouse with children, what would the spouse be entitled to (s.46 Administration of Estate Act 1925)
All personal chattels (all personal belonging)
The statutory legacy (currently £250,000)
One half of the residue of the estate (what’s lefts after the personal chattels have been taken, the statutory legacy has been paid and any debts, funeral expenses and inheritance tax has been paid)
What happens if the intestate leaves spouse with children, what would the children be entitled to (s.46 Administration of Estate Act 1925)
The other half of the residue of the estate on the statutory trusts (the children would share equally the residue between them)– if there was no residue the children would be entitled to nothing
What happens if the testates children die before them (s.46 Administration of Estate Act 1925)
- Spouse and children: children take half of the residue of estate on the statutory trusts
- Assets taken on the statutory trusts are taken between the children of the intestate:
- In equal shares for all members living at the intestates death who attain the age of 18 or marry under 18; OR
What happens if one of the testates children die before the intestate but leaves issue (children of their own) (s.46 Administration of Estate Act 1925)
those children will take the share that would have gone to their parent if those children reach the age of 18 or marry before the age of 18 – this is called ‘per stitpes’ which means ‘by branch’ – it means that the money passes to the children on the same family branch (s.47 of Administrate of Estate Act 1925)
What statute governs ‘per stitpes’ (by branch)
s.47 of Administrate of Estate Act 1925
What did Banks v Goodellow (1840) set out
To show mental capacity, a testator must show
- they understand the nature of making a will
- comprehend and appreciate the claims in will to give effect
- understand the extent of the property which he is disposing
- suffer no disorder of the mind
What is the principle in Key v Key [2010] EWHC
Testator lack mental capacity because ‘unable to exercise decision making powers’ - grief caused an affective disorder similar to depression
What case states that because the testator had partial unsoundness, it does not mean they don’t have mental capacity
Banks v Goodellow (1840)
What case states that it is not a test of memory to execute a will but a potential to understand
Simon v. Byford 2014 EWCA Civ 280
What case states that as long as the testator is of sound mind when instructing the solicitor they will be deemed to have capacity
Parker v Felgate (1883) 8 PD 171
What case confirmed Parker v Felgate (1883) 8 PD 171 is still good law
Perrins v Holland [2010] EWCA Civ 840
What section of the Wills Act 1837 need to be complied with and if they aren’t then the will can be challenged
s.9 Wills Act 1837
What case states that a testator must know and approve the contents of their will
Constable v Tufnell (1883) 4 Hagg Ecc 465
What case states that if a testator is ignorant to the contents of their will, it is invalid
Hastilow v Stobie (1865) L.R. 1 P&D 64
What does In the Estate of Wallace [1952] 2 TLR 925 state
Testator signing a will believing everything he wrote was in the will – it was established he had knowledge of what was in the will
Which cases are the authority if you sign someone else’s will that it would be invalid as there is a lack of knowledge
In the Goods of Hunt (1875) LR 3 P&D 250 and
Marley v Rawlings [2014] 2 WLR 213
How can you rectify a will where there has been an error or misunderstanding
s.20(1) of the Administration of Justice Act 1982 allows a mistake to be rectified
What case arose from there being a circumstance which ought to generally excite suspicion of the court
Barry v Butlin (1883) 2 Moo PC 480
What case states that the courts will consider all evidence available when disputing a suspicious will
Gill v Woodall [2011] Ch 380
What is the rule in Hall v Hall (1868)
A testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s
What case states that persuasion is not undue influence
Hall v Hall (1868)
What case states there is a high burden in proving undue influence where the testators physical and mental strength will be taken into account
Re Edwards [2007] WTLR 1387
What case lists what causes undue influence
Schomberg v Taylor [2013] EWHC 2269 (Ch)
What causes undue influence as stated in Re Edwards [2007] WTLR 1387
- fragile mental and physical state
- constant/persistent calling
- inconsistent will from previous wills prepared
evidence of benefit to Bruce
What is fraud (in context of a will)
Deceiving testator so they change their will or misleading them
What is forgery (in context of a will)
This isn’t misleading the testator, but creating a document which isn’t the testators
What does the Inheritance (Provision for Family & Dependants) Act 1975
as amended by Inheritance & Trustees Powers Act 2014, Schedule 2 allow someone to do
Allows a disgruntled person (who is missing out from will) to make a claim against the testator for a lack of financial provision under the rules of intestacy
What is the time limit for a claim to be brought for lack of financial provision from a disgruntled person
6 months of the date of the Grant of Representation - I(PFD)A 1975, s4
What category must a disgruntled person fall to lack a claim for lack of financial provision
s1(1) I(PFD)A 1975
What case satisfies the maintenance standard (what would be reasonable taking all the circumstances into account to provide a maintenance for that person )
Re Coventry [1980] Ch 461
What was held in the case of Illot v The Blue Cross and Others [2017] UKPC 17
- illot was claimant who was left out of her moms will
- Because mom did not want her daughter to have any money
- At first instance she was given £50k due to 1975 act
- On CA she was given £103k
- The SC reinstated that it should be £50k even though the mom left her out and was of sound mind
What is the grant of representation
Represent the deceased and to administer their estate (they are called personal representatives)
Who normally applies for grant of representation
The solicitor, and it is only then that the client can deal and administer their deceased spouses or loved ones estate (transfer or sell property; to move money around)
How do you make a grant of representation
Make an application to the probate court
What division in the high court deals with contentious probate: chancery division or family division
Chancery division
What division in the high court deals with non-contentious probate: chancery division or family division
Family division
What are the three different types of grants of representation
- grant of probate
- grant of letters of administration with will annexed
- grant of letters of administration
When can a grant of probate be applied for
If you have a valid will which validly appoints executives. The person given this grant of probate is the executor
When can a grant of letters of administration with will annexed be applied for
When you have a valid will but it fails to appoint an executor – just because you have no executor doesn’t affect there isn’t validity of the will. The person given the grant would be an administrator
When can a grant of letters of administration be applied for
Where there is no valid will (died intestate). The person given the grant would be called an administrator
How many people can be granted probate
4 under s114 Senior Courts Act 1981
What statute states that the courts have discretion to refused grant of probate to a named executor
s116 Senior Courts Act 1981
What section of Senior Courts Act 1981 allows for an executor to be removed
s50 Senior Courts Act 1981
What statue governs who can apply to be executor for a grant of letters of administration with will annexed
Application under r20 Non-Contentious Probate Rules 1987
Who can apply to be executor for a grant of letters of administration with will
- [an executor];
- a trustee of the residuary estate;
3, any other residuary beneficiary; - The personal representatives of a residuary beneficiary (who has died after the deceased);
- Any other beneficiary;
- The person representatives of any other beneficiary (who has died after the deceased).
What statute governs the entitlement to apply for grant of letters of administration
r22 NCPR
Who can apply for grant of letters of administration under r22 NCPR
- the surviving spouse / civil partner;
- children of the deceased and the issue of any child who has predeceased;
- the deceased’s parents;
- the deceased’s brother and sisters (of whole blood) and the issue of any child who has predeceased;
- the deceased’s brother and sisters (of half blood) and the issue of any child who has predeceased;
- grandparents;
- uncles and aunts of whole blood and the issue of any who have predeceased
What needs to be sent in a grant of representation
1, statement of truth
- original will
- documents in support of application
- HMRC forms
- court fee
