The validity of a will and interpretation of the contents of a will, the distribution of testate, intestate and partially intestate estates

Question 1

It is possible to deal with assets that don’t form part of the succession estate before…

Answer 1

a grant of representation

Question 1

Assets capable of passing under a will or by intestacy are referred to as…

Answer 1

the ‘succession estate’ or ‘distribution estate

Question 2

The main types of property which do not pass to the succession estate are:

Answer 2

1. Donationes mortis causa; 2. Discretionary pension scheme benefits; 3. Insurance policies written in trust; 4. Statutory nominations; 5. Property held as beneficial joint tenants; 6. Some other beneficial interests under trusts and property held in a trust

Question 3

3 requirement for a donatio mortis causa

Answer 3

The gift is made because the donor believes they may die imminently of a particular cause; the donor makes it clear the gift is conditional upon them dying (and that the property reverts to them if they survive); the donor either parts with the property or something representing ownership of it

Question 4

Why does a donatio mortis causa not form part of the succession estate?

Answer 4

It has already been validly disposed of. The interest passes on satisfaction of the condition (the death of the donor)

Question 5

Why are discretionary pension schemes not part of the succession estate

Answer 5

Because honouring the nomination of a third party is entirely at the discretion of the pension trustees - the deceased is not deemed to any entitlement to any payment from the scheme

Question 6

Deciding whether an insurance policy is part of the succession estate

Answer 6

If it is a simple life insurance policy, the proceeds pass to the succession estate. If the benefit of the policy was written in trust to another person, they will not

Question 7

What happens to a person’s estate if they die intestate without a spouse

Answer 7

When a person dies intestate without a spouse or civil partner, the strict order of entitlement under the intestacy rules applies to determine who will inherit the estate. Usually, the estate will pass to their issue on statutory trusts.

Question 8

What are the requirements for a valid will?

Answer 8

The testator must have sufficient capacity and intention to enter into the will. They must also comply with the relevant formalities set out in the Wills Act 1837.

Question 9

James owns a property as joint tenants with Robert. He leaves the property to Sam under his will. Who owns the property on James’s death?

Answer 9

Robert. James’s share will pass under the rules of survivorship to Robert. The property falls outside the intestacy rules if James did not make a will.

Question 10

What property passes outside of the rules of intestacy?

Answer 10

Property held as joint tenancies

Insurance Policies when they have been written in an individuals name.

Pension benefits.

Trust property - beneficial interests might come to an end on the testator’s death.

Question 11

What is the test to see if an individual has the relevant capacity to make a will?

Answer 11

An individual must be 18 or over with the requisite mental capacity as per the test in Banks v Goodfellow.

They must understand the nature of their act

The extent of their property

the moral claims they ought to consider (such as to children)

They must not be suffering from insane delusion.

Question 12

What is the exception to the rule surrounding mental capacity as set out in Parker v Felgate

Answer 12

Even if a person does not have capacity at the time they sign the will the will may be valid if they had capacity when they gave instructions for the will if:

the instructions were given to a solicitor who acted on them

at the time of signing they appreciate they are signing a will in accordance with previous instructions.

Question 13

Who holds the burden of proof for asserting whether a testator had the capacity to make a will?

Answer 13

The person seeking to challenge the will.

There is a presumption of mental capacity when the testator shows no evidence of mental confusion.

Question 14

What is the meaning of intention when making a will?

Answer 14

The person making the will must have general intention to make the will and specific intention to make the particular will now being executed

Question 15

When is there a presumption of intention for making a will?

In what situations does this not apply?

Answer 15

A testator who has capacity and has read the will is presumed to have the relevant intention.

This will not apply if:

The testator is blind or not signing personally.

There are suspicious circumstances.

The will must also not have been made under duress due to undue influence (undue influence must be proved by the person challenging the will. This is hard to do).

Question 16

What are the formalities for making a will under section 9 of the Wills Act 1837

Answer 16

The will must be in writing.

Signed by the testator in the presence of or acknowledged by the testator in the presence of two witnesses. Note another person can sign on the testator’s behalf and at their direction.

The two witnesses who were present at the time of signing or acknowledges testator’s signature then sign in the presence of the testator or attest their signature in the presence of the testator (but don’t need to sign in the presence of each other).

Question 17

What is the purpose of an attestation clause in a will.

Answer 17

If there is an attestation clause reciting the formalities this creates a presumption that the will has been validly executed.

If there is no attestation form then an affidavit of due execution should be obtained from one of the witnesses.

Question 18

A person dies without a will. They are survived by their child and spouse. Who gets what property on intestacy?

Answer 18

The spouse will receive all personal chattels and a statutory legacy free of tax of £322,000 if they died after July 2023 (if they died before they get £270,000). Note the spouse must survive the intestate by 28 days (no such requirement for issues).

The remaining estate is divided in half between the issue (held on statutory trust if they are under 18) and the spouse.

Question 19

What is an issue?

Answer 19

All direct descendants of the deceased.

Parents don’t need to be married.

Question 20

A couple are separated but not divorced. One of them dies, is the individual considered a spouse under intestacy rules?

Answer 20

Yes, couples are considered married until the divorce proceedings are finalised.

If the marriage was void at law from the outset then they cannot be considered a spouse.

Question 21

What happens to the family home under the intestacy rules?

Answer 21

If the home is held by a couple as joint tenants it will pass by survivorship outside the intestacy rules.

If it was held in the deceased’s sole name it will form part of the residuary estate.

The surviving spouse can request the home to be transferred to them to make up part of their entitlement under the will and pay for the rest using their own money.

Question 22

What do the rules of statutory trusts mean?

Answer 22

Any property not going to the spouse will be held for children on statutory trust contingent on them turning 18.

If any children of the deceased die before the deceased their share is passed onto their immediate children if they have any.

If an issue dies after the deceased but before they reach 18 they will be treated as if they predeceased their parents so will not inherit (unless they had children before they died but unlikely as they will have died before reaching 18) as per s47.

Question 23

What happens when the deceased has a surviving spouse but no issue and does not leave a will?

Answer 23

All property passes to the surviving spouse so long as they survive the deceased by 28 days.

Question 24

What happens if a person dies intestate and have no surviving spouse?

Answer 24

The estate is divided between the relatives in the highest category of the following lists:

• The issue on statutory trusts but if none
• Parents equally if both alive but if none
• Full brothers and sisters on statutory trusts but if none
• Half brothers and sisters on statutory trusts but if none
• Grandparents equally but if none
• Whole aunts and uncles on statutory trusts but if none
• Half aunts and uncles on statutory trusts but if none
• The Crown, Dutchy of Lancaster or Duke of Cornwall

Question 25

How are adopted children treated for the purposes of intestacy?

Answer 25

As if they were children of their adoptive parents not their natural parents.

If a person who was adopted dies intestate without spouse or issues their estate distributed to the adopted family.

Question 26

How are illegitimate children treated for the purposes of intestacy?

Answer 26

Intestacy rules are applied regardless of whether an individual’s parents were married.

Question 27

What is the basic rule surrounding how the courts consider the intention of the settlor? When does the exception apply?

Answer 27

Basic rule - court will not consider any outside evidence not contained within the will.

The exception applies when part of the will is meaningless, language used is ambiguous or other evidence shows part of the will is ambiguous.

Question 28

When will the court rectify a will?

Answer 28

Very limited circumstances - only as per s20 AJA 1982:
when the will fails to carry out testator’s intentions because of a clerical error or failure to understand instructions.

Question 29

When are the assets passing under a will determined?

Answer 29

At the time of the testator’s death.

s24 Wills Act 1837 - For property, the will takes effect as if it had been executed immediately before death.

A gift of ‘all my estate’ gifts property owned at the time of death.

Unless contrary intention can be shown such as ‘the house which I now own’. ‘My car’ will mean the car owned at the time of writing the will vs ‘my collection of cars’ is generic.

A gift of ‘my jewellery’ is capable of increase and decrease so can be taken to mean all the jewellery owned at death.

Question 30

What is the general rule for identifying beneficiaries?

Answer 30

Contrasts to property.

References to the beneficiaries are considered as people alive at the time of execution ‘will speaks from the date of execution’.

Question 31

How does the Gender Recognition Act 2004 apply to identifying beneficiaries under a will?

Answer 31

• Person who has a fill gender recognition certificate is recognised as their acquired gender
• If a will is made before April 2005 then the person cannot inherit if their previous gender is referred to
• But application can be made to the High Court

Question 32

What is the effect of a beneficiary witnessing the will?

Answer 32

The gift to a beneficiary will fail if they (or their spouse) witness the will. The remainder of the will is valid.

This does not include other witnesses of the beneficiary.

Question 33

What is the effect of divorce on a will?

Answer 33

Any property which is given under the will to the former spouse shall be treated as if the former spouse had died on the date of the divorce so they will not inherit.

Question 34

What is ademption?

Answer 34

When the testator no longer owns the property at the time of death. The gift will fail.

If the testator gets rid of the property referred to in the will but acquires a similar item the gift will still fail.

if the gift is stolen and the testator gets insurance money the beneficiary is not entitled to this money.

Question 35

What is the basic rule surrounding the lapse of a gift?

Answer 35

The gift will lapse if the beneficiary dies before the testator. The gift will form part of the residuary.

If the residuary fails the intestacy rules apply.

Question 36

The testator and the beneficiary die very close together. How does section 184 LPA 1925 apply?

Answer 36

The law of succession cannot accept that two people die at the same time. Unless there is evidence otherwise the law considers the elder of the two died first.

Question 37

What is the effect of a survivorship clause?

Answer 37

States the number of days a beneficiary must outlive the testator for to inherit the gift.

Question 38

What is the purpose of s33 of the Wills Act 1837 in relation to gifts to the testator’s children?

Answer 38

Applies to testator’s children only. If they die before the testator their gift passes to their issue.

Question 39

What happens if a beneficiary refuses to accept a gift?

Answer 39

The gift falls under the residue or intestacy.

If the person refusing if the child of a testator s33 of the wills act will apply and their issue can inherit.

Question 40

What is forefiture?

Answer 40

A person shouldn’t profit from their own crime - applies to all unlawful killings.

Treated as pre-deceasing the testator so s33 WA applies.

Question 41

Name the four ways a will can be revoked?

Answer 41

By later will.

By contrasting codicil.

By destruction.

Question 42

How does a later will revoke a previous will?

Answer 42

Automatically. Most wills contain a clause indicating this but if not, in the event there is conflict between the wills the new will prevails.

There can be partial revocation if the two can be read together and make sense.

Question 43

How can a will be revoked by destruction?

Answer 43

By burning, tearing or otherwise destroying by the same testator or by some person in their presence with their direction with the intention of revoking the same - s20 Wills Act 1837.

The need for another person to be present is not a formality but assists with adducing evidence of the testator’s intention.

Must have intention to revoke at the time of destruction.

Question 44

What is the doctrine of dependent relative revocation?

Answer 44

When the intention to revoke is dependent on some future event and the future event does not occur the previous will may still be in effect.

Question 45

How can marriage revoke a will? What is the exception to this rule?

Answer 45

Automatically.

The exception doesn’t apply when the person makes a new will prior to marriage with the intention this will is not to be revoked.

The marriage must be to a specific person and should be listed in the will.

Question 46

What are mutual wills?

Answer 46

When husband and wife both leave their estates to each other with the proviso that whichever survives will leave their estate to someone else.

Equity imposes a constructive trust over the estate. If one changes their mind it is unconscionable for the person to go back on the agreement.

For the wills to be mutual:

Must have been an agrement.

Wills made as a result of the agreement.

Part of the agreement is the survivor doesn’t revoke their will.

Person is free to do what they want with property in their lifetime but cannot make disposals with intention of defeating the agreement in the mutual wills.

Question 47

What is the purpose of a codicil, how do they operate?

Answer 47

Additions or amendments to the will.

Republishes the will - considered to have been made at the same time as the codicil.

The description of people in the will then considered at time of republication.

Question 48

How must a codicil be executed?

Answer 48

In the same way as a will.
Signed by the testator and witnessed by two present witnesses.

Question 49

When are alterations to wills valid?

Answer 49

If they are executed like a will. Don’t need to be signed can just be initialed.

If an alteration was made before the will was executed it will be valid however presumption that alterations were made after the will executed unless evidence shows otherwise.

Question 50

An alteration to a will has not been signed. Is this valid?

Answer 50

No if the original wording can still be deciphered.

An exception to this is when the wording has been obliterated - when it is impossible to identify the original wording.

Question 51

What is the conditional revocation rule?

Answer 51

When testator obliterates original wording and adds substitute wording if the testator only intended to revoke original words on condition the substitute words were effective.

Question 52

When will a general alteration be valid?

Answer 52

If it can be proved it was made before execution, provided that the will reads naturally and it is with the testator’s knowledge and approval.

Question 53

What is the situation where a will has words crossed out and it can’t be proved that the alteration occurred before execution or that it was made with the same formalities as the will, i.e. writing signed and witnessed?

Answer 53

The original gift applies

Question 54

What is the presumption given to unattested alterations?

Answer 54

They are presumed to have been made after execution, unless filling in a blank space in a will form

Question 55

What is an obliteration?

Answer 55

Where the text has been crossed out in such a way that the original text is illegible

Question 56

What is an interlineation?

Answer 56

Where writing has been inserted between the existing lines of the document, often to add something that was previously omitted

Question 57

What is the general rule on post-execution alterations?

Answer 57

Amendments made after the will is executed are invalid and unenforceable. The alteration has no effect

Question 58

What is the rebuttable presumption regarding timing of alterations?

Answer 58

Rebuttable presumption that an alteration was made after execution (which would render the alteration invalid). PRs should produce affidavit evidence to rebut this presumption.

Question 59

What can help confirm the validity of an alteration?

Answer 59

If the alteration is executed lie a will - signed by the testator and two witnesses in accordance with s9 WA.

Question 60

What is the effect of an alteration making the original gift illegible?

Answer 60

This is an obliteration and the original gift fails completely

Question 61

What are the exceptions to the general rule that unattested alterations are invalid as they are presumed to have been made after execution?

Answer 61

1) Blank spaces
2) Obliteration
3) Conditional revocation

Question 62

Does a blank space need to be attested?

Answer 62

No - a filled blank space has a presumption this occurred before execution

Question 63

What does s18 WA stipulate regarding wills and the effect of marriage?

Answer 63

When a person marries this automatically revokes in full any will (and codicil) made prior to the marriage even if this is not the testator’s intention

Question 64

What can’t you make a will in contemplation of?

Answer 64

1) A hypothetical marriage
2) A marriage/civil partnership to one person but then marry/enter a civil partnership with someone else

Question 65

What is needed to ‘disapply’ s18 WA?

Answer 65

A specific clause stating the name of future spouse / civil partner + intended ceremony must be identified in the will and must expressly state whether or not the testator intends the will to be revoked on marriage / civil partnership. This is a clause expressly in contemplation of marriage.

Question 66

What happens when a testator gets divorced?

Answer 66

The court order confirming the divorce (decree absolute) automatically operates as limited revocation of their will

Question 67

Does s18A / C regarding revocation on divorce prevent a former spouse bringing a claim under IPFDA?

Answer 67

No