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

Question 1

There are three requirements for a valid will and codicil:

Answer 1

Testator MUST have testamentary capacity.
Testator have a general and specific intention to make the will.
Testator’s signature and the form of the will MUST comply with the required formalities.

Question 2

Testamentary capacity:

Answer 2

the individual has at the time the will is executed:
Certain level of understanding which varies according to the complexity of the will itself

Question 3

Banks v Goodfellow:

Answer 3

Understanding the nature of making a will and its effects.
Understanding the extent of the property of which they are disposing.
Being able to comprehend and appreciate the claims to which they ought to give effect.
Having no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
Is over the age of 18 years.

Question 4

Testator MUST have capacity at the time of executing the will otherwise…

Answer 4

the will is void (subject to the rule in Parker v Felgate).

Question 5

Rule in Parker v Felgate:

Answer 5

will can be valid if the testator has capacity when they give instructions for the will even if they lose capacity by the time the will is executed.

Question 6

In these circumstances (Parker v Felgate) where the client has lost testamentary capacity between giving will instructions and executing the will, consider whether it’s still possible for the testator to make a valid will where:

Answer 6

They have testamentary capacity when they gave the will instructions.
They remember giving the earlier will instructions
They understand that the will they are going to sign has been prepared following those instructions.

Question 7

Intention/duress and undue influence -
Testator MUST have:

Answer 7

General intention to make a will.
Specific intention to make this particular will (know the contents of the will and then approve them).

Question 8

This presumption of knowledge and approval is satisfied if the testator has capacity when he executes the will UNLESS:

Answer 8

Testator is blind or illiterate or not personally signing
OR suspicious circumstances exist around the execution of the will.

Question 9

Intention (knowledge and approval)…

Answer 9

can be vitiated by factors such as fraud (misleading the testator), duress/undue influence (coercion of the testator) or a failure to understand fully the disposition in the will (insufficient understanding).

Question 10

Person wishing to challenge the will on the grounds of fraud or duress/undue influence MUST prove…

Answer 10

fraud, duress/undue influence, or a failure to understand fully the disposition in the will.
To prevent the will entering probate.

Question 11

Formal requirements:

Answer 11

Will can be handwritten or typed.
Standard formalities for executing a will are under (s.9 WA 1837).

Question 12

Standard formalities for executing a will are (s.9 WA 1837):
(4 elements)

Answer 12

Will must be in writing and the testator must sign it, or another person must sign it in their presence and at their direction.
MUST appear that the testator intended by their signature to give effect to the will.
Signature MUST be either made or acknowledged in the presence of at least two witnesses present at the same time.
Each witness MUST sign the will, or acknowledge their signature, in the presence of the testator (but not necessarily in the presence of any other witness).

Question 13

All of the s.9 requirements must be complied with or…

Answer 13

the whole of the will, will be invalid.

Question 14

Testator can sign a will by leaving a…

Answer 14

mark (e.g., thumb print) or directing another to sign on their behalf in their presence BUT electronic signatures AREN’T permitted.

Question 15

For the purposes of presence when witnessing, this has been extended to include…

Answer 15

include video conference or other visual transmission AKA remote witnessing.

Question 16

Will of a soldier, sailor or aviator on active military service, or any mariner or seaman at sea, DOESN’T have to meet the requirements of s.9.
These wills are called…

Answer 16

privileged wills.

Question 17

An attestation clause is not strictly required BUT if there is an attestation clause (that has been validly executed), then this is…

Answer 17

strong evidence that the formalities for signing a will have been met (presumption of due execution).

Question 18

Statutory requirement is for each witness to sign in the presence of…

Answer 18

the testator.

Question 19

No requirements for each witness to…

Answer 19

be present at the time of the other’s signature.

Question 20

No category of witness is excluded by statute but case law excludes…

Answer 20

a blind person and witnesses who are drunk or mentally unstable are unsuitable.

Question 21

It’s also best practice to avoid…

Answer 21

family members (and any possible impression of bias), minors or those who CAN’T be easily traced.

Question 22

Will CAN’T make a valid gift to:

Answer 22

Witness
Witness’s spouse (including same-sex spouse) or civil partner.
Beneficiary whose interest derives from any of these.

Question 23

The validity of the will isn’t affected only that of…

Answer 23

the gift.

Question 24

No statutory requirement for the date of execution to be on the face of the will, but it should…

Answer 24

be included to avoid uncertainty.

Question 25

Solicitor drafting a will MUST ensure that the will is…

Answer 25

validly executed as they owe a duty of care to the testator and any prospective beneficiaries who can benefit under the will.

Question 26

Necessary to identify who has the authority to deal with the deceased’s estate and…

Answer 26

obtain a grant of representation to administer the estate AKA PR.

Question 27

Appointment of PR CAN be as:

Answer 27

Executor – where the deceased left a will appointing an executor.
Administrator – where there is a will but no executor willing or able to act or there is no will.

Question 28

The appointment of executors: Deceased’s will CAN indicate who the executor is by -

Answer 28

Express appointment
Nomination
Appointment of partners in a firm Appointment as executor of a trust corporation

Question 29

Express appointment?

Answer 29

that is the executor is named in the will as an executor.

Question 30

Nomination?

Answer 30

where the will authorises an individual to name an executor.

Question 31

Appointment of partners in a firm?

Answer 31

such as solicitors in a law firm or accountants in an accountancy practice (ensure will appoints partners acting at death rather than those at the time of the will and provide for the firm’s merger or change of name or incorporation).

Question 32

Appointment as executor of a trust corporation?

Answer 32

often the trustee division of a bank or large charities.

Question 33

Where there is no express appointment there CAN be…

Answer 33

an appointment according to the construction of the will

Question 34

Where there is doubt about the construction of the will in terms of the appointment of an executor…

Answer 34

obtain guidance from a district judge or registrar before deciding who can apply for a grant of probate.

Question 35

Advisable to appoint two executors to enable the…

Answer 35

proceeds of sale for any trust for land to be paid.

Question 36

An executor can claim for… for their role BUT NOT

Answer 36

out-of-pocket expenses
remuneration

Question 37

s.29 TA 2000?

Answer 37

payment of reasonable remuneration to a trustee (including PR) if they are acting in a professional capacity or a trust corporation.

Question 38

An executor who doesn’t wish to become involved in the administration of the estate at all may?

Answer 38

renounce the right to probate.

Question 39

To renounce, the executor MUST?

Answer 39

sign a written renunciation which is filed at the Probate Registry.

Question 40

Executor MAY only renounce if he…

Answer 40

hasn’t accepted the role of executor or intermeddled with the estate.
Has accepted the role of executor, he MUST seek probate.

Question 41

Power reserved can be granted where there is…

Answer 41

more than one executor appointed in the will and there is at least one other executor who is willing to apply for probate.

Question 42

Additional executor CAN have power reserved to them which allows…

Answer 42

the executor to revive their right to a grant of probate in the estate at a later date and step in (should it be necessary).

Question 43

Amendments include any alteration to the will, such as:
(4 elements)

Answer 43

Insertions in the text of the will OR between the lines of the will.
Additions at the end of the will.
Deletion of the text that can still be used.
Obliteration of text that can no longer be read.

Question 44

There is no requirement for the testator to execute amendments that they make before executing the will itself, BUT there is a rebuttable presumption…

Answer 44

that the testator made any amendments to a will after execution UNLESS it can be proved that it was made before.

Question 45

Probate registry will ask for evidence if…

Answer 45

the testator has not confirmed the amendments (except in some cases where there is evidence within the will itself).

Question 46

If the testator and both witnesses initial amendments, the probate registry normally?

Answer 46

accepts that the testator made the amendments before execution.

Question 47

Good practice, to ensure all alterations and amendments before or…

Answer 47

after execution of the will, are witnessed and signed in accordance with s.21, WA 1837.

Question 48

Testator should make the amendments…

Answer 48

as clearly as possible in ink (including ballpoint).

Question 49

Wills written in pencil are assumed to be…

Answer 49

deliberative (not the final version) EVEN IF validly executed UNLESS there is evidence to the contrary.

Question 50

Enquiries are made on probate if amendments are not confirmed in one of the following ways:

Answer 50

Testator and both witnesses (s.21 WA 1837):
Executing the amendments in the same way as a will (follow formalities set out in s.9 WA 1837)
OR signing or adding their initial close to the amendments
OR signing or adding their initials close to a memorandum referring to the amendments.

Question 51

Testator re-executing will.
Testator making a…

Answer 51

codicil

Question 52

Minimum requirement is for the testator and both witnesses to add…

Answer 52

their initials close to the amendment.

Question 53

Testator confirms the amendments by?

Answer 53

re-executing the will, they should refer to the amendments to rebut the presumption that they made them after the re-execution.

Question 54

Should re-execute the will at the end of the will to avoid…

Answer 54

the suggestion that they added anything after the re-execution

Question 55

Re-execution doesn’t confirm amendments that are?

Answer 55

deliberative (that is, not final) UNLESS the amendments are expressly mentioned.

Question 56

Codicil?

Answer 56

document that amends or alters (rather than replaces) a previously executed will or codicil.

Question 57

Codicil allows a testator?

Answer 57

to change their will WITHOUT making an entirely new will.

Question 58

Supplemental document made after the will, is…

Answer 58

annexed to it, and is read in conjunction with the will.

Question 59

Codicil is convenient when…
and example?

Answer 59

the testator wants to make a small or straightforward amendment to their will (e.g., adding a new executor or a new legacy).

Question 60

The standard s.9 formalities for executing a codicil are the same as those for…

Answer 60

executing a will.

Question 61

Codicil normally confirms the will including…

Answer 61

any earlier codicils on the date of the codicil.

Question 62

Validly executed codicil refers to?

Answer 62

a will by date and confirms the contents of the will, can validate a will that wasn’t previously validly executed.

Question 63

Codicil can also validate amendments to a will that?

Answer 63

have not been validly confirmed in another way.

Question 64

Codicil can revoke an entire will or…

Answer 64

part of a will.

Question 65

Advisable for the codicil to state expressly?

Answer 65

what it’s revoking to avoid uncertainty about whether the testator intends to revoke it.

Question 66

Testator can revoke a will only by one of the following four ways:

Answer 66

Marrying or forming a civil partnership
Making a new will or a codicil
Making a written declaration executed in the same way as a will (according to s.9 formalities).
Destroying the will

Question 67

Revocation -
Marrying or forming a civil partnership?

Answer 67

revocation is automatic by operation of law EVEN IF not intended by the testator.
Exception to this rule is if the testator’s will shows that, at the time they made the will, they were expecting to marry or form the civil partnership with that named person AND they didn’t intend the marriage or civil partnership to revoke the will.

Question 68

Revocation -
Making a new will or a codicil?

Answer 68

a later will, or codicil operates to revoke any earlier will or codicil.
Latter will or codicil SHOULD have an express revocation clause revoking the prior will or codicil in full BUT if it doesn’t then it operates to impliedly revoke to the extent that they are inconsistent.

Question 69

Revocation -
Making a written declaration executed in the same way as a will?

Answer 69

according to s.9 formalities

Question 70

Revocation -
Destroying the will?

Answer 70

physical destruction with the intention to revoke is required, not merely symbolic such as crossing out of wording or writing revoked across the will is insufficient.
Accidental destruction doesn’t revoke a will.
Destruction of part CAN revoke only the part destroyed.
Destruction of a signature revokes the whole will.

Question 71

Effect of marriage of a testator:

Answer 71

Marriage or the formation of a civil partnership revokes a will UNLESS the will shows the contrary intention.

Question 72

Effect of divorce of a testator:

Answer 72

On divorce or at the end of a civil partnership (on a final (divorce or dissolution) order), will takes effect as if their former spouse or civil partner has died before them, UNLESS they express a contrary intention in the will.

Question 73

Effect of different types of gift:

Answer 73

Gift of personalty in a will is called a legacy.
Gift of land in a will is called a devise.
Legacy or devise in a will can be either:
General
Specific
Demonstrative

Question 74

General legacy?
Example?

Answer 74

a gift in a will that is not a gift of a particular asset in the estate but is to be paid for out of testator’s estate.

I give £100 to my neighbour.

Question 75

Specific legacy?
Example?

Answer 75

a gift of a particular asset(s) in a testator’s estate to one or more beneficiaries in a will.

I give all my jewellery to my niece.

Question 76

Demonstrative legacy?
Example?

Answer 76

a gift in a will that is not a gift of a particular asset in the estate but is a gift of a quantity or amount that is payable out of a separate fund or part of the testator’s property.

I give to my son £100,000 to be raised from the sale of my home.

Question 77

Gift in a will can fail for one of the following reasons:

Answer 77

Ademption
Lapse

Question 78

Ademption?

Answer 78

specific legacy will fail if the testator no longer owns the property at death.

Question 79

Lapse?

Answer 79

legacy in a will fails (legacy) where the intended beneficiary:
Has died before the testator.
Is the former spouse/civil partner and the marriage/civil partnership is later dissolved

Question 80

If the child of the testator died first
the legacy will?

Answer 80

be substituted automatically with a gift to the deceased child’s own children UNLESS the will provides for this not to happen (s.33 WA 1837).

Question 81

Legacy lapses?

Answer 81

property falls into residue.

Question 82

Abatement?

Answer 82

executors MUST pay the liabilities of the estate first over the paying of gifts:
Where the estate isn’t able to meet all the legacies, general legacies abate in equal proportions (before specific legacies).

Question 83

Demonstrative legacies DON’T…

Answer 83

abate with general legacies UNLESS the funds out of which the demonstrative legacies are to be paid is insufficient to pay them all.

Question 84

If the estate is unable to pay all its debts…

Answer 84

specific legacies abate amongst themselves, otherwise they don’t abate with general legacies.

Question 85

Divorce, dissolution, or annulment of marriage?

Answer 85

upon the divorce, dissolution, or annulment of marriage, any property or interest which is devised or bequeathed to the former spouse or civil partner shall pass as if the former spouse or civil partner has died (s.18A WA 1837).

Question 86

Forfeiture by unlawful killing:

Answer 86

beneficiary that has unlawfully killed the testator MUST forfeit their interest under the will or intestacy.
However, their forfeited entitlement is substituted automatically with a gift to their own children unless the will provides for this not to happen (s.33 WA 1837).

Question 87

Beneficiary witnesses will?

Answer 87

If a beneficiary or their spouse/civil partner acts as a witness, the gift to the beneficiary fails (s.15 WA 1837).
Will remains validly executed as a beneficiary can witness a will BUT CAN’T benefit under it if he/she witnesses the will.

Question 88

Intestate?

Answer 88

someone who has died without leaving a valid will or who has failed to dispose of their entire estate by will.

Question 89

Person CAN die intestate if they:

Answer 89

Didn’t make a will
Revoked a will that they have made.
Made an invalid will

Question 90

When someone died intestate the statutory rules that govern…

Answer 90

the admin and distribution of a person’s estate apply.
Rules are contained principally in parts 3 and 4 of the Admin of Estates Act 1925.

Question 91

s.46 of the AEA 1925 (intestacy):
total intestacy occurs when?

Answer 91

a person dies without leaving a valid will.

Question 92

Partial intestacy occurs when?

Answer 92

someone dies leaving a valid will BUT the will doesn’t dispose of their whole estate.

Question 93

Intestacy rules only apply to?

Answer 93

property that the deceased could have left by the will.

Question 94

Intestacy rules don’t apply to?
(4 elements)

Answer 94

Assets that the deceased held jointly with another party where the right of survivorship applies so that the assets pass to the survivor.
Assets held on trust for the deceased that pass under the terms of the trust on their death.
Nominated assets.
Life insurance policies taken out for the benefit of a name individual.
Pension benefits paid by the trustees of the pension fund at their discretion to members of the deceased’s family.

Question 95

For deaths on or after 1 October 2014:

Answer 95

where the intestate leaves a surviving spouse/civil partner and no issue, the spouse/civil partner inherits everything.

Question 96

Intestate is survived by their spouse/civil partner and issue the residuary estate is distributed as follows:
(5 elements)

Answer 96

Spouse/civil partner receives all personal chattels absolutely.
Spouse/civil partner receives a statutory legacy free of inheritance tax and costs plus gross interest from death until payment.
If the residuary estate is worth less than £270,000, the spouse or civil partner receives everything, and the issue receive nothing.
Rest of the residuary estate is divided into two halves.
The spouse/civil partner takes one half absolutely and the issue takes the other half on statutory trusts.

Question 97

Term issue includes?

Answer 97

all direct descendants of an individual including adopted children and illegitimate children but not stepchildren.

Question 98

Term spouse includes?

Answer 98

persons married or in civil partnership BUT NOT where the marriage or civil partnership has ended in divorce or dissolution.
Doesn’t include cohabitees.

Question 99

Surviving spouse/civil partner has the right to…

Answer 99

require the PRs to vest the matrimonial home in them, in full or partial satisfaction of their absolute interest in the intestate’s estate.

Question 100

Spouse/civil partner MUST give all the PRs…

Answer 100

written notice of their wish to exercise this right to the matrimonial home within 12 months of the grant.

Question 101

No surviving spouse/civil partner (or fails to survive the 28-day rule),
Residuary estate is divided in the following order:

Answer 101

Issue receives on statutory trusts, but if none.
Parents receive, equally if both alive, but if none
Brother and sisters of the whole blood (and their issue) receive on statutory trusts, but if none
Brothers and sisters of the half-blood (and their issue) receive on statutory trusts, but if none
Grandparents, equally if more than one, but if none
Uncles and Aunts of the whole blood receive on statutory trusts, but if none.
Uncles and Aunts of the half-blood receive on statutory trusts, but if none.
Bon Vacantia (estate passes to the crown, duchy of Lancaster or duke of cornwall).

Question 102

Apart from the spouse, parents and grandparents, each category of relatives takes the residuary estate subject to…

Answer 102

the statutory trusts.

Question 103

Trust establishes membership of a class of beneficiaries and…

Answer 103

the terms on which they take the residuary estate.

Question 104

The statutory trusts contain three main provisions:

Answer 104

Class of beneficiaries
Contingency
Substitution

Question 105

Statutory trusts:
Class of beneficiaries?

Answer 105

the residuary estate is held on trust in equal shares for relatives in the relevant category who are living at the time of the deceased’s death, including persons who are conceived BUT not born at the time of the deceased’s death.

Question 106

Statutory trusts:
contigency?

Answer 106

interests of beneficiaries are contingent on reaching 18 years old.

Question 107

Statutory trusts:
Substitution

Answer 107

if a member of the relevant category dies before the intestate leaving issue, the issue takes their deceased parent’s share, in equal shares if more than one, contingently on reaching 18 years or earlier marriage or civil partnership.

Question 108

Intestacy rules apply only to…

Answer 108

property that the testator has left by will.

Question 109

Intestacy rules don’t apply to the following property and will pass outside the estate:

Answer 109

Joint property
Life policies
Pension scheme benefits
Trust property

Question 110

Intestacy rules don’t apply to -
Joint property:

Answer 110

asset that the testator held jointly with another party where the right of survivorship applies.
When the joint owners hold an asset as joint tenants, on the death of one of the joint owners the asset passes to the surviving owner automatically, irrespective of the deceased owner’s will.

Question 111

Intestacy rules don’t apply to -
Life policies:

Answer 111

life insurance policies taken out for the benefit of a named individual.

Question 112

Intestacy rules don’t apply to -
Pension scheme benefits?

Answer 112

pension benefits paid by the trustee of the pension funds at their discretion to members of the deceased family.

Question 113

Intestacy rules don’t apply to -
Trust property:

Answer 113

assets held on trust for the deceased that pass under the terms of the trust on their death.