Non-dispositive Clauses Flashcards
How should a will be worded?
Clear, unambiguous language; avoid unnecessary technical terms; traditionally no punctuation; important clauses capitalised (e.g., I GIVE, I APPOINT).
What is the standard structure of a will?
1) Commencement
2) Revocation
3) Burial/Funeral wishes
4) Appointment of executors & trustees
5) Appointment of guardians
6) Specific gifts
7) General gifts
8) Pecuniary gifts
9) Residuary gift
10) Administrative clauses
11) Date & Attestation.
What details must the commencement clause include?
Testator’s full name, aliases (if any), address, occupation; declares document as last will; date may be included.
Purpose of revocation clause?
Revokes all prior wills and codicils, ensuring only one valid will at any time.
Are burial/funeral instructions legally binding?
No, but typically followed if possible.
What are executors responsible for?
Collecting and administering estate, paying debts, administration costs, and expenses.
Minimum and maximum number of executors?
Minimum 1, recommended 2+, maximum 4 may apply for grant of representation at one time.
Who cannot act as executor?
Minors or those lacking mental capacity. Bankrupt individuals may act but limited in functions.
What happens to spousal appointments upon divorce/dissolution?
Appointment becomes ineffective unless stated otherwise.
Can executor appointments be qualified/restricted?
Yes, e.g., only handling UK or business assets.
When are two trustees required to act?
Required if there’s an express trust, potential trust, or minor beneficiaries. Alternatively, a trust corporation may act alone.
Must executors and trustees be the same individuals?
Common but not mandatory.
Can a partnership itself be appointed executor?
No, partnerships lack separate legal identity; all partners must be appointed individually.
Can you limit how many partners act as executors?
Yes, common to limit to one or two; preference for specific partners allowed but risky if partner leaves firm.
Should appointment clause anticipate firm mergers or conversions?
Yes, appointment clause usually accounts for successor firms, LLPs, or incorporated firms.
Can an LLP or Trust Corporation be sole executor/trustee?
Yes. Trust corporations specifically have legal authority for trustee and executor roles.
Difference between Trust Corporation and LLP?
Trust corporation has distinct legal authority specifically for trustee/PR roles, separate from LLP or limited company.
Who can charge for executorship services?
Only professional executors (lawyers, accountants, etc.) have statutory right to charge; advisable to include express charging power clause.
Is charging for professional executor services a breach of fiduciary duty?
No, if authorised by the will.
When does guardian appointment take effect?
Usually after death of the surviving parent.
Must a guardian accept their appointment?
No, guardian is not obligated to accept.
Can financial provisions be included for guardians?
Yes, e.g., legacy payable only if guardian appointed.
Difference between Executors and Trustees?
Executors administer estate, short-term role. Trustees manage ongoing trusts post-estate administration, longer-term role.
When might a trust arise for executors without an express clause?
If executors cannot immediately distribute estate (e.g., minor or contingent beneficiaries).
