Unit 1

Question 1

List the property which passes outside of the will and intestacy rules

Answer 1

1) Joint property (held as beneficial joint tenants)

2) Insurance policies on trust (i..e, written on trust for the benefit of specified individuals)

3) Pension benefits of someone who has died in service

4) Trust property – I.e., where someone has a life interest, this dissolves – moreover, the trust property is dealt with according to the terms of the trust and not the deceased life tenant’s will.

Question 2

What is the residuary gift?

Answer 2

Comprises all of the money / property left after the testator’s debst, expenses of dealing with the estate and other gifts have all been paid.

Question 3

What happens if there is no residuary gift?

Answer 3

Rest of the estate which is not disposed of under the will goes through intestacy.

Question 4

What are the 3 requirements for a valid will?

Answer 4

1) Capacity

2) Intention

3) Correct formalities under the Wills Act 1837.

Question 5

What is the test for testamentary capacity?

Answer 5

1) Soundness of mind, memory and understanding

2) Testators must understand:

– Nature of their act and its broad effects (i.e, they are making a will which will have effect on their death)

AND

– Extent of their property (although not necessarily recollecting every individual item)

AND

– The moral claims they ought to consider (even if they decide to reject such claims and dispose of their property to other beneficiaries).

Question 6

What is the general rule on the timing of capacity?

Answer 6

Testators must have capacity at the time they execute their wills.

Question 7

What is the exception to this general rule?

Answer 7

Rule in Parker v Flegate – A 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 8

What is the effect of the mental capacity act 2005?

Answer 8

Where a testator is mentally incapable of making a valid will, a statutory will may be made for them under the MCA 2005. (Only if it is in the testator’s best interests).

Question 9

What is the golden rule?

Answer 9

If a testator lacks capacity, the will is void.

Question 10

What should a solicitor do when preparing a will for a testator whose mental health is in doubt?

Answer 10

• Solicitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and also ask the doctor to witness the will.
• Written evidence, including the solicitors’ own view, should be kept in a file note in the case that someone challenges the validity of the will after the testator’s death.
• Report witnessing by a medical practitioner in accordance with the ‘golden rule’ will find it difficult to be challenged on capacity grounds.

Question 11

Who has the burden of proof?

Answer 11

General rule = It is for the person asserting that a will is valid to prove it.

Question 12

When can executors rely on the presumption of capacity?

Answer 12

If the will is rational on its face and the testator showed no evidence of mental confusion before making the will.

Question 13

In terms of intention, at the point of singing the will, what must the testator have?

Answer 13

1) General intention – I.e., intention to make A will

and

2) Specific intention – I.e., intention to make that specific will.

Question 14

Does the rule in Parker v Felgate apply as an exception for intention?

Answer 14

Yes.

Question 15

What is the presumption of knowledge and approval?

Answer 15

Where a testator has capacity and has read and executed the will – they are presumed to have requisite knowledge and approval.

Question 16

What are the 3 exceptions to the presumption of knowledge and approval?

Answer 16

1) Testator blind / illiterate / not signing personally

2) Suspicious circumstances

3) Force, fear, fraud, undue influence and mistake

Question 17

For exception 1) what are the requirements?

Answer 17

– Where testator is blind / illiterate or did not sign personally, the probate registry required evidence to prove knowledge and approval before they issue a grant of probate

– Good practice to include a statement at the end of the will stating that the will was read by the testator or read to them, who knew and approved its contents.

Question 18

For exception 2) Suspicious circumstances, what are the requirements?

Answer 18

– E.g., will prepared by a beneficiary who stands to gain the most or who is a close relative of the beneficiary

– The person putting forward the will must remove the suspicion by proving knowledge and approval on part of the testator. I.e., the presumption of knowledge and approval does not apply and must be proven.

– Includes strange circumstances, e.g., where testator has extreme anxiety at the time of considering the will with their solicitor.

Question 19

Should a solicitor accept instructions from a third party to draw up a will for a testator?

Answer 19

No. Testator should be interviewed in the absence of the third party.

Question 20

What are the effects of exception 3) Force, fear, fraud, undue influence and mistake?

Answer 20

Where there is a testator with capacity and presumed knowledge and approval of contents of the will, anyone who wishes to challenge the will (or any part of it) must prove one or more of the following to prevent some or all of the will from being admitted to probate

Question 21

What is force or fear?

Answer 21

Actual or threatened injury.

Question 22

What is fraud?

Answer 22

Being misled by some pretence

Question 23

What is undue influence?

Answer 23

(where a testator’s freedom of choice was overcome by intolerable pressure but their judgement remained unconvinced). Undue influence in the context of wills means coercion or duress. Persuasion stopping short of coercion is not undue influence:

– Necessary to prove undue influence in relation to a will. There is no presumption of undue influence & it has to be contested. This makes it very difficult for a person to challenge a will on this basis (they’ll need to collect evidence from family, friends and carers).

– Such a serious allegation that if they fail to substantiate their claims they will be penalised in costs.

Question 24

What is mistake?

Answer 24

Presumption of knowledge and approval does not apply if all or part of the will was included by mistake.

– Words included without the knowledge and approval of the testator will be omitted from probate.

– Necessary to distinguish between actual mistake (i.e., absence of knowledge and approval) and misunderstanding as to the true legal meaning of words used in the will.

– Misunderstanding does not result in words being omitted.

Question 25

What are the requirements for a validly executed will under s 9 Wills Act 1837?

Answer 25

1) Will must be in writing

2) Will must be signed

3) Testator must have intended to give effect to the will by his signature

4) The signature must be witnessed

Question 26

Formality 1) Will must be in writing

Answer 26

– No restrictions on materials or type of wording

– Can be handwritten, in braille or shorthand

– Does not have to be on paper (will written on an eggshell was admitted to probate before)

– Electronic will held only on a computer does not satisfy ‘writing’ element of s. 9.

Question 27

Formality 2) Will must be signed

Answer 27

– Testator should sign the will

– Any kind of signature is acceptable provided the testator intends to represent their own name.

– ‘your loving mother’ was held to be valid because the signature was sufficient to identify the testator and she intended the words to represent her name.

– Crosses, thumbprints have been accepted.

– S 9 allows another person to sign the will on the testators behalf in the testators presence and at their direction. The testator must give the person a positive and discernible direction (verbal or non-verbal) that they want the person to sign on their behalf.

Question 28

Formality 3) Testator must have intended to give effect to the will by his signature

Answer 28

– Must appear that the testator intended that his signature would cause the will to take effect.

Question 29

Formality 4) Signature must be witnessed

Answer 29

Two stages to the witnessing process:

1. Testator’s signature must be made or acknowledged in the presence of two witnesses. Two witnesses must be present at the same time.
2. Witnesses to sign the will in the presence of the testator (but not necessarily in the presence of each other).

– Presence = mental and physical presence. Mental presence = witnesses are aware the testator is signing a document. Do not have to know it’s a will. Physical presence = must see or be able to see the testator signing; there has to be an unobstructed line of sign between the witness and testator.

– ‘Acknowledging signatures’ is an alternative if the witnesses were not present at the signing stage. This just means that the testator affirms that the signature is theirs.

Note – No formal requirements as to capacity of the witnesses although they must be capable of understanding the significance of being the witness to a signature.

Question 30

If either of the witnesses to a will is a beneficiary under the will or is a spouse of a beneficiary, what happens?

Answer 30

The will remains valid, but the gift to the witness or to the witness’s spouse fails.

Question 31

What is the exception to requirements of formalities under s 9?

Answer 31

Privileged wills:

A will made on actual military service or by a mariner or seaman at sea may be made in any form.

Includes a mere oral statement.

Question 32

What is an attestation clause?

Answer 32

A clause which states that the s 9 formalities were observed (e.g., ‘signed by testatrix in our joint presence and then by us in hers’).

Question 33

What arises when there is an attestation clause?

Answer 33

Presumption of due execution.

Question 34

What is the effect of there being a presumption of due execution?

Answer 34

It is presumed that all formalities were complied with & anyone challenging the validity of the will on the basis it was not validly executed has the burden of proving it.

Question 35

What happens if there is no attestation clause?

Answer 35

Probate Registry requires an affidavit of due execution from a witness or any other person who was present during the execution, or, an affidavit of handwriting evidence to identify the testator’s signature, or they will refer the case to a judge.

Question 36

When do intestacy rules apply?

Answer 36

1) No will

2) Invalid will

3) Partial disbursement of the estate (e.g., gifts fail / no residuary)

Question 37

What is the only way to avoid the intestacy rules?

Answer 37

Make a valid will.

Question 38

What property do the intestacy rules apply to?

Answer 38

Property which is capable of being left by a will.

Question 39

How is property held under S 33 Statutory Trust?

Answer 39

= Intestacy rules impose a trust over all the property (real and personal) in respect of which a person dies intestate.

• That property is held on trust by the person(s) dealing with the estate – the personal representative(s) or PRs
• Trust includes a power of sale
• PRs must pay funeral, testamentary and administration expenses (e.g., legal fees and tax) and debts of the deceased. PRs may sell assets to raise cash for these expenses.
• The balance remaining (after setting aside a fund to meet any pecuniary legacies left by the deceased in the will) is the ‘residuary estate’ to be shared among the family under the rules of distribution set out in s 46 AEA 1925.

Question 40

Do PRs have the power to appropriate assets in or towards satisfaction of a beneficiary’s share?

Answer 40

Yes, with the beneficiary’s consent.

Question 41

Do friends or charities benefit under the intestacy rules?

Answer 41

No. Only deceased’s family.

Question 42

What are the rules of distribution where there is a surviving spouse or civil partner and issue?

Answer 42

Where the intestate is survived by both spouse or civil partner and issue, the residuary estate is distributed as follows:

(a) Spouse / civil partner receives the personal chattels absolutely. Personal chattels are defined in s 55(1)(x) of the AEA 1925 as tangible moveable property, other than property which:

(i) Consists of money or securities for money
(ii) Was used at the death of the intestate solely or mainly for business purposes, or
(iii) Was held at the death of the intestate solely as an investment.

(b) Spouse receives a statutory legacy, free of tax and costs plus interest from death until payment.

• ‘Rate of interest’ = the Bank of England rate that had effect at the end of the day on which the intestate died.
• ‘Statutory legacy’ = set amount fixed by Parliament and for deaths on or after 6th February 2020 is £322,000. If the residuary estate, apart from the personal chattels, is worth less than £322,000, the spouse receives it all (in a partial intestacy the spouse does not have to account for anything received under the will).

(c) The rest of the residuary estate is divided in half. One half is held on trust for the spouse / civil partner absolutely. Other half is held for the issue on the statutory trusts.

Question 43

What is the requirements of “spouse” under the intestacy rules?

Answer 43

Legally married at the time of death.
* Re Seaford = Divorce was finalised at 10 am 6th July. Husband found dead in bed at 4 am 6th July. Fell within definition of ‘spouse’ as they were technically still married at the time of death.

• Shaw v Shaw = Marriage was void when they found Mr Shaw was already married at the time of wed. Mrs Shaw not entitled to anything under intestacy rules.

Question 44

Define “issue”?

Answer 44

includes all direct descendants of deceased: i.e., children, grandchildren, great grandchildren, etc. (i.e., other than spouses)

Question 45

Do illegitimate children and adopted children come within the definition of issue?

Answer 45

Yes.

Question 46

Do step children come within the definition of issue?

Answer 46

No.

Question 47

Under the statutory rules, how long must the intestate’s spouse survive in order to inherit?

Answer 47

28 days.

• If the intestate’s spouse or civil partner dies within 28 days of the intestate, the estate is distributed as if the spouse or civil partner has not survived the intestate.

Question 48

What happens to the family home under the intestacy rules?

Answer 48

– Any interest in the property held as beneficial joint tenants passes outside the intestacy rules by survivorship.

– If the family home is held in the intestate’s sole name or as tenants in common, the intestate’s interest in the home forms part of the residuray estate and is subject to the intestacy rules.

Question 49

Under the intestacy rules, does the family home automatically pass to the surviving spouse?

Answer 49

No.

Question 50

Can the surviving spouse require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate?

Answer 50

• If family home forms part of the residuary estate passing on intestacy, the surviving spouse/civil partner can require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate. Note – to exercise this right, they must be living in the home. (i.e., request to buy it with her share).

Question 51

What is the timeframe for the spouse to elect to exercise this right?

Answer 51

Formally elect to exercise this right within 12 months of the grant of representation.

Question 52

Once the surviving spouse has their share, how is the rest of the estate distributed?

Answer 52

Passes to the intestate’s issue on ‘the statutory trusts’.

1) Primary beneficiaries (children of the intestate who are living a the intestate’s death)

2) Per Stirpes – If any child of the intestate predeceased the intestate, any children of the deceased child (grandchildren of the deceased) are living at the intestate’s death take their deceased parent’s share equally between them, contingently upon attaining 18 or earlier marriage or formation of a civil partnership.

– Per Stirpes = Each branch of family receives an equal share, rather than each member receiving an equal share.

3) If children or issue survive the intestate but die without obtaining a vested interest, but leaving issue, s 47 AEA 195 = they will be treated as having predeceased the intestate so that they can be replaced by their own issue

Question 53

What is the distribution where there is a surviving spouse or civil partner but not issue?

Answer 53

Where there is a surviving spouse/ civil partner but no issue, the whole estate (however large) passes to spouse of civil partner absolutely.

• Other relatives, like brothers, sisters, grandparents and cousins not entitled.
• Spouse / civil partner must survive the intestate for 28 days to inherit.
• If they die within that period, the estate is distributed as if the spouse had not survived the estate.

Question 54

What is the distribution where there is no surviving spouse or civil partner?

Answer 54

Where there is no surviving spouse or civil partner, or where the spouse dies within 28 days of the intestate, the residuary estate is divided between the intestate’s relatives in the highest category in the following list:

(a) Issue on the ‘statutory trusts’, but if none:
(b) Parents, equally if both alive, but if none:
(c) Brothers and sisters of the whole blood on the statutory trusts, but if none
(d) Brothers and sisters of the half blood on the statutory trusts, but if none
(e) Grandparents, equally if more than one, but if none
(f) Uncles and aunts of the whole blood on the statutory trusts, but if none
(g) Uncles and aunts of the half blood on that statutory trusts but if none
(h) The Crown, Duchy of Lancaster or Duke of Cornwall (Bona vacantia).

• List functions on an ‘all or nothing’ basis = working from the top, if anyone falls within the category, they will receive the whole of the entitlement (divided equally if there is more than one person in the category) and those in the next and lower category receive nothing.

Question 55

What is bona vacantia?

Answer 55

Where the intestate is not survived by any of the relatives provided for under the intestacy rules, the estate passes bona vacantia (passes to the Crown).

Question 56

If the intestate lived in Lancashire or Cornwall, where does their estate pass under bona vacantia?

Answer 56

1) Duchy of Lancaster (Lancashire)

2) Duchy of Cornwall (Cornwall)

Question 57

Does the crown have discretion to provide for dependents of the intestate under bona vacantia?

Answer 57

Yes.

Question 58

What happens to the money under bona vacantia?

Answer 58

• Where an estate passes BV, the Crown hands them over to HM Treasury to be used in the same way as money collected through taxes; Duchy of Lancaster donates the money to charity; Duke of Cornwall pays it into a ‘benevolent fund’ which provides grants for charitable purposes.

Question 59

How are adopted children treated under intestacy rules?

Answer 59

General rule = Adopted children are treated for intestacy purposes as the children of their adoptive parents and not of their natural parents. (i.e., in the same way as non-adopted children).

Question 60

What is the presumption for illegitimate children under intestacy rules?

Answer 60

On the intestacy of an individual whose parents were not married to each other, it is presumed that the individual has not been survived by their father or any person related to them through their father, unless the contrary is shown.

• This means the PRs do not need to make enquiries where the identity or whereabouts of the father is unknown.
• Presumption does not apply where the father is named on the intestate child’s birth certificate.

Question 61

What are the key rules under human fertilisation and embryology act 2008?

Answer 61

S 33 = a child’s mother is the woman who gave birth to the child

S 35 = where the mother undergoes assisted reproduction using donated sperm, and she is in a heterosexual marriage at the time of the treatment, it is her husband who is the legal father of the child (unless he did not consent to the treatment)

S 36 = Where a mother undergoes treatment at a licensed clinic using donated sperm, she can give notice that for example, her male cohabitant is to be the legal father.