Testacy

Question 1

What are the Requirements of a Valid Will?

Answer 1

• The Testator must be over 18 (military personnel exempted).
• The Will must be in writing.
• The Testator must intend to create a particular Will, meaning they must understand and approve of its contents.
• The Testator must possess Testementary Capacity when the Will is executed.
• The Testator, or their representative, must sign the Will in the presence of two adult, independent, mentally capable Witnesses, at least one of whom must physically witness the signature.
• The Witnesses must sign the Will in the Testator’s presence.
• The Testator was free of duress or undue influence.

Wills Act 1837.

Question 2

What are the Requirements for Testementary Capacity?

Answer 2

The Testator must:
1. Understand the nature and effect of writing a Will;

1. Appreciate the extent of the property being disposed;
2. Understand and appreciate the moral considerations of distributing their estate; and
3. Have no mental disorder that impinges upon their moral or cognitive factulties in diposing of their property by Will.

Banks v Goodfellow (1870).

The threshold to satisfy this test is relatively low.

Question 3

Can a Will still be Valid is the Testator lacked Testementary Capacity at the time of Execution?

Answer 3

Yes, but only if the Testator:
* Had Testamentary Capacity when they gave instructions for their Will;

• The Will was prepared according to those instructions; and
• At the time of execution, the Testator understood they were signing a Will for which they previously gave instructions.

Parker v Felgate (1883).

This is relevant where a Testator’s Testamentary Capacity fluctuates over time or suddenly declines.

Question 4

What is the Golden Rule of Testementary Capacity?

Answer 4

When in doubt, instruct a medical professional to assess the Testator’s capacity and make a record their evaluation and conclusion.

Kenward v Adams [1975].

This is best practice, not a legal obligation, and does not conclusively determine Testementary Capacity. Also, failing to follow it is not necessarily malpractice if you have solid justification.

Question 5

Is there a Presumption of Capacity?

Answer 5

Yes, if the Will has been duly executed and prima facie seems rational.

Anyone who wishes to challenge validity on grounds of incapacity must provide evidence sufficient to raise doubt, and if successful, the presumption is rebutted and the burden of proof reverts to the Propounder

Question 6

When will a Court authorise the Execution of a Will on behalf of an Adult who lacks Capacity?

Answer 6

When it is persuaded there are grounds to overlook incapacity, namely because it is in the person’s best interests to do so.

Mental Capacity Act 2005 — s. 18(1).

Question 7

Is there a Presumption of Knowledge and Approval?

Answer 7

Yes, unless:
* The Testator is blind or illiterate;

• The Will was signed by another on their behalf; or
• There are suspicious circumstances.

Where there is no presmuption, and the Attestation clause does not adequately explain the conditions under which the Will was executed, an affidavit of knowledge and approval would be needed when submitting the Will to probate.

Question 8

What is Undue Influence?

Answer 8

Coercion against another’s judgement or honest intentions.

The Victim does not genuinely exercise choice, surrendering to pressures they are unable to withstand.

Question 9

What is the Consequence of Duress or Undue Influence on a Will?

Answer 9

Either particular provisions or the entire Will are rendered void.

Question 10

Can a Beneficiary act as a Witness to a Will?

Answer 10

Yes, but if they do, they cannot inherit under the Will.

Wills Act 1837 — s. 15.

Here, a Beneficiary is anyone who gains any benefit under the Will.

Question 11

What is the General Structure of a Will?

Answer 11

• Introductory Clauses.
• Commencement.
• Revocation.
• Burial & Funeral Wishes.
• Appointment Of Executors & Trustees.
• Appointment Of Guardians.
• Specific Gifts.
• General Gifts.
• Demonstrative Gifts.
• Pecuniary Gifts.
• Residuary Gift.
• Administrative Clauses.
• Date & Attestation.

Question 12

What is the Purpose of the Commencement Clause?

Answer 12

To identify the Testator, using their full name and address, and the document’s objective.

Question 13

What is the Purpose of the Revocation Clause?

Answer 13

To nullify all previous Testementary documents, granting the present iteration supremacy.

Question 14

What is the Purpose of the Burial & Funeral Wishes Clause?

Answer 14

To outline specific instructions regarding disposition of remains, burial, and the funeral.

Question 15

What is the Purpose of the Appointment of Executors & Trustees Clause?

Answer 15

To appoint an Executor and a Trustee, whether absolutely or with qualifications.

Often, the Executor and Trustee are the same person.

A Testator can appoint up to four Executors, and it is wiser to have more than one.

Question 16

What is an Executor?

Answer 16

A Personal Representative (“PR”) of the Deceased, responsible for collecting their assets and administering their Estate.

The difference between an Executor and Administrator is that the latter is appointed by the Non Contentious Probate Rules, not the Deceased’s Will.

Question 17

How is a Trustee’s Role distinct from an Executor’s?

Answer 17

The Trustee is responsible for managing trusts that persist after administration for as long as they exist.

Question 18

What is the Purpose of the Appointment of Guardians Clause?

Answer 18

To appoint a Legal Guardian for the Testaor’s dependants.

Children Act 1989 — s. 5.

This usually does not take effect until the surviving parent dies.

Question 19

What is a Specific Gift?

Answer 19

A Gift of a particular asset.

Drafting must be especially precise.

Question 20

What is a General Gift?

Answer 20

A Gift that is not distinguished from property of a similar type.

Question 21

What is a Demonstrative Gift?

Answer 21

A General Gift, usually Pecuniary, that must be paid out of a specific fund.

Question 22

What is a Pecuniary Gift?

Answer 22

A Gift of money.

Question 23

What is a Residuary Gift?

Answer 23

A Gift of the remainder of the Testator’s Succession Estate following all dispositions under the Will or any Codicils.

Question 24

What is the Purpose of the Administrative Powers Clause?

Answer 24

To outline the powers of Executors and Trustees to ensure proper administration and management in line with the Deceased’s intentions.

The standard provisions produced by the Society of Trusts and Estates Practitioners (the “STEP Provisions”) are nationally recognised and widely used in practice.

If a Will contains no express administrative powers, then statutory and common law powers will apply by default.

Question 25

What is the Purpose of a Date & Attestation Clause?

Answer 25

To document that the Will was properly executed.

In the absence thereof, or in the presence of a poorly drafted clause, proof of proper execution is required

Question 26

Generally, from which Date does the Will speak?

Answer 26

The date of the Testator’s death unless contrary intention is shown.

Wills Act 1837 — s. 24.

Accordingly, every Will is assumed to speak and take effect as if it had been executed immediately before the Testator’s death.

Question 27

What is the Class Closing Rule?

Answer 27

Membership in a class becomes exclusive once a Beneficiary gains a vested interest.

This is why express wording as to class composition is necessary.

Question 28

Generally, who bears the Burden of Taxes, Debts, Costs, and Expenses?

Answer 28

The Residuary Estate.

Where the Will is silent on the subject, a Legacy is made free of tax but subject to the costs of transfer.

Question 29

What is the Commorientes Rule?

Answer 29

Where two deaths occur under circumstances that make it unclear who died first, it will be assumed that the eldest died first.

LPA 1925 — s. 184.

For tax purposes, however, the deaths are treated as simultaneous.

To avoid this problem, simply include a Survivorship Clause.

Question 30

What is a Survivorship Clause?

Answer 30

One that makes inheritence conditional on the Beneficiary surviving the Testator by a specific period of time.

Question 31

What are the Requirements for Incorporating an Unexecuted Document into a Will?

Answer 31

• The document must exist when the Will is executed;
• The Will must refer to the document as being in existence at the time of execution; and
• The document must be clearly identified in the Will.

Wills Act 1837 — s. 9.

You can obviate this by expressly incorporating the document into the Will, e.g. by making it a Schedule.