SQE2: Wills Creation Flashcards
Requirements for Valid Will
- Capacity
- at time of execution
- deemed if had capacity when giving instruction and understood this when signing - Intention
- generally to make will, and specifically that will - Executed properly
- signed (for) T in front of 2 witnesses
- signed by each witness infant of T
Test for capacity to create will
Rebuttable Presumption
T understood when executing:
1. The nature of the act;
2. The extent of their property; and
3. The claims to which they ought to give effect (ie. who they would normally give gifts to)
Test for intention to create will
Rebuttable presumption unless:
- signed by someone else
- blind or illiterate (need special attestation clause)
- suspicious circumstances
Test:
- intention to create a will
- intention to create that will
Grounds for challenging will?
- No Capacity
- rebuttable presumption
- either when signing or when giving instruction - No Intention
- rebuttable presumption - Execution
- witness is blind, in-capable
- signature on behalf was not at T’s direction and in presence
- not properly witnessed
What should you advice if someone challenges validity of will or PR?
Lodge Caveat to prevent Grant from being issued
- lasts 6 months
- may then go to court
Who can be a witness to a will, and effect?
- Requirements
- understands the significance of acting as witness
- need not know content or that it is will - Cannot be
- blind
- mentally unsound - If Beneficiary or Wife
- gift fails (unless more than 2 witnesses or perfected in codicil
Requirements to alter will
- Must
- be before execution
- read naturally
- may require proof - After execution
- re-execute the alteration
When is a will revoked?
- Marriage
- unless made in contemplation (stated in will)
- NOT divorce (spouse treated as dead) - Destroyed
- with intention to revoke
- in presence and at direction - Found Mutilated/Missing
- presumption of destruction - Execution of new will or codicil
- inconsistent parts
- can revoke whole of last one
What are different types of gifts in will and effect?
- Specific Legacy Gift
- subject to ademption so fails if no longer part of estate - General Legacy Gift
- can require PRs to purchase if not part of estate - Pecuniary Legacy
- if demonstrative might take priority
- appropriation available with consent
Effect of Beneficiary pre-deceasing or failing to survive long enough?
- Generally gift fails
- May be gift over clause
- If issue then goes to their issue (even unborn)
- Left jointly
- survivorship
Simultaneous Death effect
Younger presumed to survive older
Class Gifts Rules
Subject to contrary intention:
- divided amongst class of beneficiaries
- class closes as soon as first vests
Time from when beneficiary should be interpreted
Date of execution
Date at which assets should be interpreted?
- Generally from death
- not if class that can change in value “my jewellery” - Contrary intention
- word “my” usually shows this
- such as my car: if charged car by date of death this will adeem - If drafting use more precise language
- ie “my car when I die”
Who does estate go to in intestacy if they are married?
Spouse must survive for 28 days
- No children
- everything to spouse - If children (not step)
- spouse gets personal chattel, £322k and 1/2 residue
- children share 1/2 residue
- spouse can demand to appropriate family home
