SPA - Probate

Question 1

What are the steps for checking whether a will is valid?

Answer 1

1. Has it been signed by the testator?
2. Has it been signed by 2 witnesses?
3. Has the signing followed the correct procedure?
4. Did the testator have capacity?
5. Did the testator know and approve the contents of the will?
6. Has the will been revoked?

Question 2

When will there be a presumption that the signing of a will has followed the correct procedure?

Answer 2

There is a presumption that the correct procedure has been followed if there is a properly worded attestation clause that recites the correct procedure.

Question 3

What will revoke a will?

Answer 3

If there is a later will, it will revoke (expressly/impliedly) any previous wills.

A marriage or formation of a civil partnership automatically revokes a will, unless it has been made in contemplation of a forthcoming marriage.

Question 4

When does a contentious probate matter arise?

Answer 4

Contentious probate matter arises when a challenge is made either to:

i. the validity of the will, or

ii. the way in which the estate is being administered by the personal representatives e.g., they are breaching their duties

Question 5

What is needed to make a valid will?

Answer 5

The testator must have:
i. mental capacity, and
ii. the intention to make a will.

The will must also be duly executed in accordance with s9 Wills Act 1837

Question 6

What is the presumption re mental capacity?

Answer 6

A testator is presumed to have the necessary mental capacity to make a will unless someone challenging the validity of the will can point to a lack of capacity

Question 7

What is needed for a testator to have mental capacity?

Answer 7

The testator must have understood:

i. the nature of their act (i.e., that they were making a will),

ii. the extent of their property, and

iii. who a testator would normally give gifts to

Question 8

When may the court deem that a testator acted with capacity?

Answer 8

A court may deem a testator to have acted with capacity if the testator didn’t have adequate mental capacity at the date of executing the will, but had sufficient capacity when giving instructions to the will drafter.

Question 9

What happens to the will if there were suspicious circumstances?

Answer 9

If there were suspicious circumstances, e.g., where the will drafter benefits from the will, the gift will fail unless evidence of the testator’s knowledge + approval of the gift is offered by the person putting forward the will.

Question 10

What should happen if a testator would like to give the solicitor drafting their will a substantial gift in their will?

Answer 10

The solicitor should refuse to draft the will including the legacy unless the testator has taken independent advice.

Question 11

When will a will not be regarded as the act of the testator?

Answer 11

If a will is made as a consequence of:
i. force,
ii. fear,
iii. fraud, or
iv. undue influence.

It will not be admitted to probate

Question 12

When is a will issued under duress?

Answer 12

If a will arises as a result of force or fear of injury

Question 13

What is undue influence?

Answer 13

Arises when something overpowers the testator’s volition.

It must be something beyond mere persuasion.

Question 14

What are the requirements for the signing of the will?

Answer 14

Each witness must sign in the presence of the testator (but not necessarily in the presence of the other witness)

The testator must sign in the presence of 2 or more witnesses.

Question 15

What is an attestation clause?

Answer 15

May be included to confirm the signing requirements have been complied with, e.g., “signed by the testator in our presence and then by us in his.”

Question 16

What happens if an attestation clause is not included?

Answer 16

Proof must be offered that the signing requirements were met.

Question 17

How can a will identify another document that becomes part of the will?

Answer 17

The document must exist at the date of the will + be referred to in the will as so existing, otherwise, it cannot be incorporated.

A future intention to make a list, schedule, or memorandum doesn’t suffice.

Question 18

What Act governs bringing claims against an estate by family members?

Answer 18

The Inheritance (Provision for Family and Dependants) Act 1975

Question 19

What claim may be made against the estate under the 1975 Act?

Answer 19

An application for family provision may be made to the court to set aside the terms of a will (or vary an intestacy) of a person who died domiciled in England and Wales on the grounds that reasonable financial provision has not been made for the applicant.

Question 20

When must a claim under the 1975 Act be brought?

Answer 20

Such a claim must typically be made within 6 months from the date of the grant

Question 21

Who may bring a claim under the Inheritance (Provision for Family and Dependants) Act?

Answer 21

1. Surviving spouse or civil partner
2. Former spouse or civil partner who hasn’t remarried
3. Child of deceased/person treated as a child of the family of the deceased
4. Person being maintained by the deceased
5. Person who was living with the deceased during the whole of the 2-year period immediately before the death as the spouse/civil partner/same-sex partner of the deceased

Question 22

What is the standard of reasonable financial provision for a spouse applicant under the 1975 Act?

Answer 22

What would be reasonable in all circumstances, whether or not required for their maintenance.

Question 23

What is the standard of reasonable financial provision under the 1975 Act for non-spouse applicants?

Answer 23

Standard is such provision required for their maintenance such that they can live decently and comfortably according to their situation.

Question 24

What happens if the court approves an application under the 1975 Act?

Answer 24

The estate devolves according to the terms of the court’s order + not in accordance with the will or on the rules on intestacy

Question 25

What power does the court have when dealing with a 1975 Act application?

Answer 25

Court has very wide discretion.

Has the power to make the following orders:
i. transfer of property,
ii. payment of a lump sum,
iii. payment of income, and
iv. settlement of property on trust