SQE2 Drafting Practice Flashcards
Mr Parsons is writing a will and he would like Jim to be his executor, but is happy for Steve to do so if Jim cannot or will not.
JIM ROGER PARSONS of 1 The Street Brighton BN1 2ER
STEVEN MATTHEW PARSONS of 3 Great Lane Horsham RH12 FD
How would this be drafted in a will?
- APPOINTMENT OF EXECUTORS
I APPOINT my son JIM ROGER PARSONS of 1 The Street Brighton BN1 2ER to be the sole executor of this my will PROVIDED THAT he shall survive me for a period of 28 days but if he shall fail to survive me for a period of 28 days or be unable or unwilling to act I APPOINT my son STEVEN MATTHEW PARSONS of 3 Great Lane Horsham RH12 FD in his place
COMMENTARY: If both Jim and Steven fail to survive you then you would have no executor appointed under your will to administer your estate. In such an event, section 20 of the Non-contentious Probate Rules 1987 deems who would be entitled to act as administrator. In the absence of an executor and where the remainder of the will is valid, this may be a residuary beneficiary, their own personal representative, or a legatee. If you do not want any of these people to administer the estate, you may wish to consider a further substitute executor clause, such as appointing the partners of our firm.
Mr Parsons is writing a will and he wants to be cremated and that it is very important to him that his funeral ceremony is completely non-religious. He would like some reassurance that his executor must adhere to the wishes in his will in this regard.
How would this be drafted?
- FUNERAL WISHES
I WISH to be cremated following a non-religious funeral ceremony
COMMENTARY: Please note that funeral requests made under a will are simply an expression of wishes. There is no legal obligation on your executor to fulfil the wishes, only a moral obligation.
Mr Parsons is writing a will.
Mr Parsons told me that his wife died 15 years ago and he has not remarried. He has three children. Jim and Steve are both
children from the marriage. Rebecca is Mr Parsons’ daughter from an affair he had 30 years ago. Mr Parsons’ property is owned as tenants in common by Mr Parsons and the trustees of his late wife’s will. Her share of the property was left on trust for her children, with Mr Parsons having a life interest in the property so that he could remain living there until his death. In total the property is worth £550,000. Mr Parsons’ total assets comprise of his half share of property, money in bank
accounts and savings of £45,000, and some paintings which have been valued at £5,000. He wants to let Rebecca have one of his paintings, but he doesn’t mind which one. Steve, however, is particularly keen on one called “The Red Night”, which is
worth £500, so Mr Parsons wants Steve to receive this. Mr Parsons wants Jim and Steve to share the property equally and wants this to be transferred to them, rather than sold and the proceeds paid to them, as he hopes they will keep this as a property to provide each of them with a rental income. Mr Parsons wants everything else to go to Jim in recognition of the care and support he is providing. This means that Jim will receive the £45,000, plus the remaining paintings. Mr Parsons commented that he has calculated this as an approximate 60/40 split in favour of Jim, which he thinks is a fair figure. He would not want the difference
between his two sons’ inheritance to be any greater.
Rebecca’s full name is Rebecca Nancy Aldridge, but Mr Parsons
does not know her current address as he has not seen her for many years.
How would these specific legacies be drafted?
- SPECIFIC LEGACIES
I GIVE the following specific legacies free of tax
(a) My painting “The Red Night” to my said son STEVEN MATTHEW PARSONS
(b) Save as above any one painting, as she may choose, owned by me at my death to my daughter REBECCA NANCY ALDRIDGE
(c) All my share in my property 1 The Street, Brighton, BN1 2ER to my said sons JIM ROGER
PARSONS and STEVEN MATTHEW PARSONS in equal shares
COMMENTARY: Although beneficiaries may move between execution of a will and distribution of the estate, it is preferable to include a current address so that beneficiaries can be easily traced. I would, therefore, suggest that a current address for Rebecca is obtained to include in your will. In addition, Rebecca would be an eligible claimant under the Inheritance (Provision for Family and Dependants) Act 1975. If she feels that the will does not adequately provide for her, she could make a claim, within six months of a grant of representation being obtained, for a larger share of the estate. A letter should be written by you to be placed with the will, which explains your reason(s) for not including Rebecca as a residuary beneficiary. This can then be used in defence of any later claim made. This is not a fool-proof approach, but the best form of defence you can possibly provide. It is important to specify what you would like to happen with your property if Jim and/or Steven were to predecease you - for example, would you like the whole half share to go to the survivor, or to instead pass to Jim/Steven’s own children? If this is not expressly determined by your will, prevailing law would apply which may not coincide with your wishes. For example, if both Jim and Steven predecease you without children of their own, it is likely that Rebecca would inherit the property under intestacy.
Jim would like Josephine and Steve to be his executors.
JOSEPHINE RUBY CLARKE of 1 The Street Brighton BN1 2ER
STEVEN MATTHEW PARSONS of 3 Great Lane Horsham RH12 4FD
How should this be drafted?
- APPOINTMENT OF EXECUTORS
I APPOINT the said JOSEPHINE RUBY CLARKE of 1 The Street Brighton BN1 2ER and my brother STEVEN MATTHEW PARSONS of 3 Great Lane Horsham RH12 4FD to be the joint executors of this my will PROVIDED THAT they shall survive me for a period of 28 days
COMMENTARY: If both Jim and Steven fail to survive you then you would have no executor appointed under your will to administer your estate. In such an event, section 20 of the Non-contentious Probate Rules 1987 deems who would be entitled to act as administrator. In the absence of an executor and where the remainder of the will is valid, this may be a residuary beneficiary, their own personal representative, or a legatee. If you do not want any of these people to administer the estate, you may wish to consider a further substitute executor clause, such as appointing the partners of our firm.
Josephine is a strict Catholic, so Jim confirmed that he
would like a Catholic funeral service. How should this be drafted in the will?
- FUNERAL WISHES
I wish to have a Catholic funeral service.
COMMENTARY: Please note that funeral requests made under a will are simply an expression of wishes. There is no legal obligation on your executor to fulfil the wish, just a moral obligation.
Jim would like Josephine and Steve to be his executors, and would like everything to pass to Josephine except for his cat, Tiddles, who he would like Steve to have as Steve is particularly fond of Tiddles. Jim told me that, if Tiddles does go to Steve, he would also like to give £5,000 to Steve to help with the cost of looking after Tiddles.
How would the provision for pets be drafted?
- PROVISION FOR PETS
I give my cat TIDDLES to my said brother STEVEN MATTHEW PARSONS together with the sum of £5,000 free of all taxes such sum to be used solely for the maintenance of TIDDLES
Jim is engaged to marry Josephine Ruby Clarke. They have not yet set a date, but Jim would like to ensure that his will would not be affected by the marriage, whenever it may take place. Jim confirmed that he wishes are the same whether or
not he and Josephine end up marrying. Josephine currently lives with Jim and Mr Parsons.
How should this be drafted?
- INTENDED MARRIAGE
This will shall not be revoked if the proposed marriage to my intended wife JOSEPHINE RUBY CLARKE takes place
COMMENTARY: As this clause is open-ended, i.e. it has no time limit imposed on it, once signed the will it will remain valid whether or not you and Josephine marry until such time as it is revoked by you, or a new will is made
Jim would like Josephine and Steve to be his executors, and would like everything to pass to Josephine except for his cat, Tiddles, who he would like Steve to have.
How should a clause for the residuary estate be drafted in the will?
- RESIDUARY ESTATE
I GIVE all the rest and residue of my estate subject to the payment of my debts funeral and testamentary expenses and legacies (‘my residuary estate’) to the said JOSEPHINE RUBY CLARKE absolutely.
COMMENTARY: It is important to specify what you would like to happen to the residue if Josephine were to predecease you, so that you are in control of the distribution of your estate. If you do not specify a substitute beneficiary and Josephine were to predecease you, the rules of
intestacy would prevail.
How would you enter the name of John Smith on a Claim Form if he is claiming in an individual capacity?
Mr John Smith
How would you enter the name of John Smith on a Claim Form if he has deceased and his executors are initiating a claim?
The executors of John Smith (deceased)
How would you enter the name of John Smith on a Claim Form if he claiming in his capacity as a sole trader (Smith’s Bricks)?
John Smith T/A Smith’s Bricks
How would you enter the name of the partnership Smith & Co on a Claim Form?
Smith & Co (a firm)
How would you enter the name of the company Smith’s Brick’s Ltd/Limited on a Claim Form?
Smith’s Brick’s Ltd/Limited
If a claim is unspecified, what should be entered into the ‘Value of the Claim’ section in the Claim Form?
Estimated value, without interest.
- High Court: C expects to recover more than £100,000 (or £50,000 PI).
- County Court: C expects to recover: a) not more than £10,000; b) more than £10,000 but not more than £25,000; c) more than £25,000; or d) a sum to be determined by the court (if unclear). When calculating this figure possible awards of interest or costs, contributory negligence and counterclaims should be disregarded.
- Personal Injury: Must state whether more than £5,000 sought for pain, suffering and amenity.
- Damages + Non-Monetary Remedy: If a claim is for both damages and a non- monetary remedy such as an injunction to prevent a private nuisance, a statement of value must be given in respect of the damages claimed.
