UNIT 1: INTESTACY, VALIDITY

Question 1

What happens to property held by more than one person as beneficial joint tenants?

Answer 1

The deceased tenant’s interest passes by survivorship to the surviving joint tenant(s). Applies to joint bank account. Tenant in common’s share passes under their will or intestacy.

Question 2

What happens to insurance policies?

Answer 2

• Life assurance benefit on trust to specific individual passes outside intestacy/will (otherwise to PRs)
• Once policy has been written in trust or given away, benefit of policy does not belong to policy holder. On policy holder’s death, policy matures + insurance company will pay proceeds to named beneficiaries (or to trustees for them) regardless of terms of deceased’s will or intestacy rules.

Question 3

Pension benefits?

Answer 3

Pension benefits do not belong to employee during their lifetime and pass on death independently of the terms of any will/intestacy rules.
Unless arrears, then will go under intestacy rules.

Question 4

Trusts?

Answer 4

• Deceased may have held equitable interest as beneficiary of a trust – many come to end on beneficiary’s death ie life interest. Trust property will devolve according to terms of the trust and not the deceased life tenant’s will.

Question 5

What order will the solicitor analyse the assets?

Answer 5

o A) property passing outside the will
o B) property passing under the will
o C) any property not disposed of in a and b and passing on intestacy

Question 6

What is a specific gift?

Answer 6

Specific item or items which testator owns, distinguished from rest of testator’s assets. Clause 4 (gold watch) is specific legacy and clause 6 (Old vicarage) is specific devise.

Question 7

What is a general gift?

Answer 7

Item(s) corresponding to a description. If testator does not own item(s) at death, executors must obtain using funds obtained from estate, ie share purchase. Rare unless they have gifts of money.

Question 8

What is a demonstrative gift?

Answer 8

General in nature but directed to be paid from a specific fund, ie 500 from Nationwide savings. If account exists at date of death + contains 500 or more, legacy paid from the account + classified as specific.

If no account (or contains less than 500), the legacy is paid in whole or in part from rest of estate and then is general

Question 9

What is a pecuniary gift?

Answer 9

Gift of money, usually general but could be demonstrative or specific ie ‘I give 100 held in safe in study;. Clause 5 (10,000 to charity) is an example.

Question 10

What is a residuary gift?

Answer 10

‘rest’ of money/property – comprises all money + property left after testator’s debts, expenses of dealing with estate + other gifts made under will have all been paid.

Sweeping-up provision, usually most substantial

Question 11

What are the requirements for a valid will?

Answer 11

Wills Act 1837: formalities, capacity and intention.

Question 12

What is the test for capacity?

Answer 12

• Individual 18 or over (certain limitations) + requisite mental capacity.
• Banks v Goodfellow soundness of mind, memory and understanding, testators must understand:
  o The nature of their act + broad effects (making a will that will have effect on death)
  o Extent of their property (not necessarily recollecting every individual item); and
  o The moral claims they ought to consider (even if they decide to reject such claims and dispose of property to other beneficiaries.
  o No insane delusion affecting disposition of property.
• General rule is that testators must have capacity at the time they execute their will EXCEPTION: a will can be valid if the testator has capacity when they give instructions for the will even if they lose capacity but the time the will is executed – Parker v Felgate.
  o Will valid if instructions given to solicitor who prepared will in accordance to instructions + at the time the testator executes will, they appreciate that they are signing a will prepared in accordance with previous instructions.
• Mental Capacity Act 2005 – statutory test for capacity to take a decision
• If a testator is mentally incapable of making a valid will, a ‘statutory will’ may be made on their behalf under the MCA ; Court of Protection empowers an authorised person to execute the will and then gives effect to the will by affixing the court seal.
• Will require full details of the deceased, their family, property and previous wills and will approve a draft will only if it is in the testator’s best interests.

Question 13

What is the golden rule in the context of capacity?

Answer 13

• If testator lacks capacity, will is void.
• Solicitor preparing will for testator whose mental state is in doubt should follow golden rule in Kenward v Adams: ask a medical practitioner to provide written report confirming that testator has testamentary capacity + also ask doctor to witness the will.
• Solicitor should record their own view of testator’s capacity in a file note, written evidence should be kept on file in case someone challenges validity of will after death

Question 14

Burden of proof for capacity?

Answer 14

• General rule is that it is for person who is asserting that a will is valid to prove it.
• Question of validity arises AFTER testator’s death when executors apply for grant of probate.
• Executors can rely on a presumption of capacity; executors do not usually have to prove capacity b/c of presumption that testator satisfied the mental capacity test.
• Presumption applies if will is rational on its face + testator showed no evidence of mental confusion before making will.
• If someone challenges validity, burden shifts to challenger to prove lack of capacity.
• The courts are less likely to find that the testator lacked capacity if a rational will was
  prepared by an experienced, independent solicitor who met the testator and explained the will to them. Equally, a report or witnessing by a medical practitioner in accordance with the ‘golden rule’ will make it very difficult to challenge the will on the ground that the testator lacked capacity.

Question 15

What is intention?

Answer 15

• When the will is signed, testator must have both general and specific intention
• Testator must intend to make a will and must also intent to make the particular will now being executed (ie must know and approve contents)
• Testator must know + approve contents of will at the time when the will is executed, Parker v Felgate applies.

Question 16

Who has the burden of proof in the context of intention?

Answer 16

• General rule that person asserting that a will is valid proves it.
• Usually not necessary to prove intention b/c presumption of knowledge + approval arises.

Question 17

What is the presumption of knowledge and approval?

Answer 17

• Testator who has capacity and has read/executed will is presumed to have the requisite knowledge + approval, but does not apply:
• Testator blind/illiterate/not signing personally: or other person signed will on testator’s behalf due to injured hand  HMCTS will require evidence to prove knowledge + approval before issuing grant of probate, ie statement at end of will stating that will was read over to testator or read by testator who knew + approved contents.
• Suspicious circumstances: surrounding drafting and/or execution of the will (eg prepared by someone who is to be major beneficiary under its terms or close relative of major beneficiary)  executor must remove suspicion by proving that testator did actually know and approve will’s contents.
  o Wintle v Nye  beneficiary (solicitor) had to prove that testatrix knew + approved contents of will, fabricated in suspicious circumstances as testatrix of limited intelligence, unversed in business + relied for advice on Nye who had been family’s solicitor for years. Will was complicated + she did not get independent advice, solicitor retained original will + did not give her copy.
  o Gill v Woodall  presumption did not apply where beneficiary played no part in preparation of will. Testatrix on excellent terms with daughter + grandson left everything to RSPCA after leading daughter to believe she would inherit, severe anxiety + agoraphobia, panic at solicitor, no evidence that she had read will or had explained it to her, presumption did not apply.
   Burden of proof lay with RSPCA to establish that Gill had known + approved of contents but failed to discharge burden – declared void + daughter inherited under intestacy rules.
• A solicitor should not accept instructions from a third party to draw up a will for a testator. They should interview the testator in the absence of the third party to ensure that any will drafted reflects the testator’s wishes.

Question 18

Who has the burden of proof for force, fear undue influence and mistake?

Answer 18

• Where a testator with capacity appears to have known and approved the contents of the will, any person 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:
  o Force or fear (through actual or threatened injury), or
  o Fraud (eg after being misled by some pretence), or
  o Undue influence (where the 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 – very difficult for a person to challenge a will on this basis. They will need to collect evidence from family, friends and carers. It is such a serious allegation that a claimant who fails to substantiate their claim will be penalised in costs.

Question 19

What happens if part/all of the will is included by mistake?

Answer 19

• Presumption of knowledge + approval does not apply if all or part of the will was included by mistake.
• Any words included without knowledge and approval of testator will be omitted from probate.
• Important to distinguish between actual mistake (ie absence of knowledge and approval) and misunderstanding as to true legal meaning of words used in the will, in latter case mistaken words will NOT be omitted.

Question 20

What are the formalities for signing a will?

Answer 20

• S9 Wills Act 1837, no will shall be valid unless:
• (a) it is in writing, and signed by the testator, or by some other person in his presence and by
• his direction; and
• (b) it appears that the testator intended by his signature to give effect to the will; and
• (c) the signature is made or acknowledged by the testator in the presence of two or more
• witnesses present at the same time; and
• (d) each witness either—
• (i) attests and signs the will; or
• (ii) acknowledges his signature,
• in the presence of the testator (but not necessarily in the presence of any other
• witness), but no form of attestation shall be necessary.

Question 21

Does the will have to be in writing?

Answer 21

Yes. No restrictions on materials / type of wording; could be typed or handwritten, in Braille or shorthand.

Does not have to be written on paper, ie eggshell.

An electronic will held only on a computer probably would not be considered ‘writing’. The purpose of s 9 is to prevent fraud and it would be too easy for a third party to change an electronic will fraudulently.

Question 22

Signature of will?

Answer 22

Testator should sign the will.

Any kind of signature acceptable provided the testator intends the signature to represent their name  Estate
of Cook will signed ‘Your loving mother’ held to be valid b/c signature was sufficient to identify the testator + intended the words to represent her name.

Crosses + thumbprints have been accepted.

S 9 allows another person to sign the will on testator’s behalf in the testator’s presence + at their direction, ie testator is too weak to sign the will / injured hand. 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 23

How can the testator show that he intends to give effect to the will by his signature?

Answer 23

It is not enough for the will simply to bear a signature. It must appear that the testator intended that his signature would cause the will to take effect.

Question 24

Witness rules for a will?

Answer 24

2 stages:
1. Testator’s signature must be made or acknowledged in the presence of 2 witnesses. Must be present at the same time to protect against fraud/coercion.
2. Witnesses sign the will in presence of testator (but not necessarily in presence of each other).

Presence requires mental and physical presence; witnesses must be aware that testator is signing a document mentally, they do not have to know it is a will. For physical presence, must see/be able to see testator sign; unobstructed line of sight between witness + testator.

Acknowledging signatures is an alternative if witnesses were not present at signing stage – person confirms signature is theirs.

Question 25

Understanding rules for witnesses?

Answer 25

Presence requires mental and physical presence; witnesses must be aware that testator is signing a document mentally, they do not have to know it is a will. For physical presence, must see/be able to see testator sign; unobstructed line of sight between witness + testator.

No formal requirements relating to capacity of witnesses, but must be capable of understanding significance of being witness to a signature. If either witness is beneficiary under will or spouse/civil partner of beneficiary, will remains valid but gift to witness or witness’s spouse or civil partner fails – s15 Wills Act 1837.

Question 26

Remote witnessing?

Answer 26

2020 Ministry of Justice legislation to allow remote witnessing for limited period for wills made between 28 Sept 2020 and 31 Jan 2024, s9 amended so that ‘presence’ includes videoconference or visual transmission, applies only where testators sign wills themselves. Where signed on behalf of testator, must be in actual presence of testator, remote not enough.

Government guidelines:
1. Witnessing pre-recorded videos not permitted, must be real-time.
2. Witnesses and testator canal be at different locations, 3 way link, or 2 can be physically together with one at remote location.
3. Testator must physically sign will (or acknowledge an earlier physical signature). Electronic signatures not allowed. Testator must date will with the date of signature.
4. The will must then be taken or posted to witnesses.
5. Witnesses must physically sign will in virtual presence of testator and if possible in virtual or physical presence of each other.
6. Witnesses will sign with date on which they are signing which may be different from date on which testator signed and date on which other witness signs. Execution process not complete until everyone has signed.
Will not valid until both witnesses have signed, if testator dies before all signatures added, will cannot take effect.

Question 27

What is a privileged will?

Answer 27

• One exception to the rule that wills must comply with the requirements of s 9: will made on actual military service or by a mariner or seaman at sea may be in any form, including a mere oral statement (s 11 Wills Act 1837).
• The only requirement is that the ‘testator’ intends to dispose of his property after his death. For example, in a 1981 case, a soldier on active service in Northern Ireland during the ‘troubles’ said ‘if I don’t make it, make sure Anne gets all my stuff’. He died the following day. His oral statement was held to be a valid will passing all his property to his fiancée, Anne.

Question 28

What is the presumption of due execution?

Answer 28

General rule is that it is for the person who is asserting a will is valid to prove it in terms of formalities. However, in most cases, no proof is necessary because there is a presumption of due execution.

• The presumption arises if will includes a clause which recites that the s 9 formalities were observed, such as, ‘Signed by the testatrix in our joint presence and then by us in hers’, called an attestation clause. The presumption means that anyone challenging the validity of the will on the ground that it was not validly executed has the burden of proving this was the case.
• If the will does not contain an attestation clause, HMCTS will require an affidavit of due execution (or witness statement verified by a statement of truth) 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 (all of which involve time and expense).

Question 29

When do intestacy rules arise?

Answer 29

Administration of Estates Act 1925, 3 situations:
o Where there is no will either because the deceased never made a will at all or all wills have been successfully revoked (total intestacy).
o Where there is a will, but for some reason it is invalid or it is valid but fails to dispose of any of the deceased’s estate (total intestacy).
o Where there is a valid will, but it fails to dispose of all the deceased’s estate (partial intestacy). This will occur if the will simply omitted a gift of residue or if a residuary gift fails, for example because the residuary beneficiary has predeceased. In a partial intestacy the intestacy rules only apply to that part of the estate not disposed of by the will

The intestacy rules apply only to property which is capable of being left by will

Question 30

How does a statutory trust arise?

Answer 30

• Intestacy rules impose a trust over all property (real and personal) in respect of which a person dies intestate – s33 AEA 1925.
• That property held on trust by person(s) dealing with estate – PRs, similar to usual express trust found in will + includes power of sale.
• Trust provides that PRs must pay funeral, testamentary and admin expenses (ie legal fees and tax), and any debts of deceased.
• If necessary PRs can sell assets from estate to raise cash to pay debts and expenses.
• Balance remaining (after setting aside fund to meet any pecuniary legacies left by deceased in will) is residuary estate to be shared among family under rules of distribution s46 AEA.
• Not required to sell assets which form residuary estate, have power under s41 AEA to appropriate asserts in or towards satisfaction of beneficiary’s share with beneficiary’s consent.
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Question 31

Define spouse and issue

Answer 31

spouse = person deceased was legally married to at time of death; all spouses treated equally, nature or quality of relationship irrelevant, living apart/new partners irrelevant.
* Re Park – spouse satisfied b/c couple still legally married even though relationship 17 days.
* Former spouse excluded from definition only from point where divorce is actually finalised + marriage is legally at end
o Re Seaford: husband found dead after court order finalising divorce made, but medical evidence suggested he died before finalised, wife entitled under intestacy.
* Marriage void ab initio under law never takes place ie one party already married or under-age, not a spouse for intestacy, ie in Shaw v Shaw where husband already married.
* Voidable marriage (ie one party under duress/mental disability) valid until the court makes a nullity order, just as in divorce, party to voidable marriage is a spouse until order is made.
* Civil partners + spouses treated exactly same way, same rules.
* Cohabitant has no entitlement under intestacy rules, do not feature in rules of distribution even if relationship was long-standing.

• ‘issue’ includes all direct descendants of deceased; children, grandchildren, great, adopted children + remoter descendants, those whose parents were not married at time of their birth.
• Descendants of deceased’s spouse or civil partner (step) are NOT issue of deceased unless adopted.

Question 32

What happens when intestate is survived by both spouse/civil partner AND issue?

Answer 32

1. The spouse or civil partner receives the personal chattels absolutely – s55(1)(x) of AEA 1925 define them as tangible moveable property, other than any such property which –
   a. Consists of money or securities for money, or
   b. Was used at the death of the intestate solely or mainly for business purposes, or
   c. Was held at death of intestate solely as an investment.
2. In addition, spouse or civil partner receives a ‘statutory legacy’ free of tax and costs plus interest from death until payment, rate of interest payable is the Bank of England rate that had effect at the end of the day on which the intestate died. The ‘statutory legacy’ is a set amount fixed by Parliament and for deaths on or after 26 July 2023 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).
3. The rest of the residuary estate if any is divided in half, one half held on trust for spouse or civil partner absolutely, other half held for issue on statutory trusts.

• Intestate’s spouse or civil partner must survive intestate for 28 days in order to inherit. If intestate’s spouse or civil partner dies within 28 days of intestate, estate is distributed as if spouse or civil partner has not survived the intestate.

Question 33

Family home interest

Answer 33

• Interest in a property held as beneficial joint tenant passes (outside intestacy rules) by survivorship.
• If family home held in intestate’s sole name or as tenants in common, intestate’s interest in home will form part of residuary estate, subject to intestacy rules –> family home will NOT automatically pass to surviving spouse/civil partner.
• If family home forms part of residuary estate passing on intestacy, surviving spouse/civil partner can require PRs to appropriate family home in full or partial satisfaction of their interest in estate, MUST be living in property to exercise right.
  o Ie surviving spouse’s entitlement 500k + residuary estate includes family home worth 300k, surviving spouse can require home to be transferred to them in part satisfaction
  o If property worth more than entitlement, spouse/civil partner may still require appropriation provided they pay difference ‘equality money’ to estate.
  o The surviving spouse/civil partner muts formally elect to exercise the right + notify PRs in writing within 12 months of grant of representation.

Question 34

Applying statutory trusts in terms of children?

Answer 34

• The part of estate which does not pass to surviving spouse passes to intestate’s issue on ‘the statutory trusts’, determine membership of class of beneficiaries and terms s47 AEA 1925:
  o Primary beneficiaries = children of intestate who are living at intestate’s death. Remoter issue NOT included unless child has died before intestate.
  o Interests of children contingent upon attaining 18 or marrying or forming a civil partnership under that age. Any child fulfilling contingency at intestate’s death takes a vested interest.
  o If any child predeceased the intestate, any children of the deceased child (grandchildren of deceased) who are living at intestate’s death take their deceased parent’s share equally between them, contingent upon attaining 18/earlier marriage or formation of civil partnership. Great grandchildren included only if parent had also predeceased intestate. This form of substitution and division whereby each branch of family receives equal share, rather than member receiving equal share, is ‘per stirpes’ distribution.
  o If children or issue survive intestate but die without attaining a vested interest, their interest would normally fail + estate distributed as if they had never existed. BUT s47 amendment – if they die without attaining vested interest but leaving issue, they will be treated as having predeceased the intestate so that they can be replaced by their own issue – to be substituted, issue must be living at intestate’s death.

Question 35

Distribution where there is a surviving spouse or civil partner but NO issue?

Answer 35

• Whole estate however large passes to spouse or civil partner absolutely. Other relatives such as parents, siblings, grandparents + cousins not entitled.
• Spouse or civil partner must survive the intestate for 28 days in order to take. If dies within period, estate distributed as if spouse or civil partner has not survived the intestate.

Question 36

Distribution where there is NO surviving spouse or civil partner?

Answer 36

• Where there is no surviving spouse or civil partner, or where the spouse or civil partner dies within 28 days of the intestate, the residuary estate is divided between the intestate’s relatives in the highest category in the list below:
  (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 the ‘statutory trusts’, but if none,
  (h) the Crown, Duchy of Lancaster, or Duke of Cornwall (bona vacantia).
• The list works 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 categories receive nothing

Question 37

Obtaining relative’s share?

Answer 37

• Each category other than parents and grandparents takes ‘on the statutory trusts’.
• Members of specified class categories take the estate equally (children under 18 take their interest contingently upon attaining 18 or marrying earlier), and that issue of a deceased relative may take that relative’s share. ( person with an interest under the statutory trusts who dies without attaining a vested interest but leaving issue, will be treated as having predeceased the intestate so that they can be replaced by their own issue. To be substituted, the issue must be living at the intestate’s death.)
• This means that relatives not mentioned in s 46 (eg nephews, nieces and cousins) may inherit on intestacy if their parents died before the intestate.

Question 38

Bona Vacantia?

Answer 38

• Means vacant or ownerless goods + under ancient common law rights, feudal lord.
• Where intestate is not survived by any of relatives provided for under intestacy, estate passes bona vacantia, to Crown (government), or Duchy of Lancaster (if intestate lived in Lancashire) or Duchy of Cornwall (‘’ Cornwall).
• Where an estate passes bona vacantia, the Crown (through the Treasury Solicitor), the Duchy of Lancaster or Duke of Cornwall has a discretion to provide for dependants of the intestate, or for other persons for whom the intestate might reasonably have been expected to make provision. That discretion could be exercised, for example, in favour of an individual who had a close relationship with the intestate, but no entitlement under the intestacy rules such as a step- child or a cohabitant.
• There is an overlap here with the Inheritance (Provision for Family and Dependants) Act 1975 which allows qualifying individuals to apply to court for provision from an estate.
• The Treasury Solicitor’s policy is to require proceedings to be brought under the Act if possible as this enables all potential claimants to be involved and their respective interests weighed.
• Modern technology and methods of communication mean that genealogists are usually able to trace some relatives.
• However, where funds do pass bona vacantia, the Crown hands them over to the HM Treasury to be used in the same way as money collected through taxes; the Duchies of Lancaster and Cornwall pay the money into benevolent funds which provide grants for charitable purposes.

Question 39

Adopted children?

Answer 39

• Treated as children of their adoptive parents and not of natural parents.
• If person adopted dies intestate without spouse or issue, their estate will be distributed between closest relatives in adoptive family.
• Adopted child may also inherit on intestacy of any member of adoptive family.
• Statutory trusts – common for minor child to have contingent interest; if child subsequently adopted, loses all legal connections to natural family. Any contingent interest which adopted person had immediately before adoption in the estate of a deceased natural parent is preserved.
• Exception is limited to parents – adopted child will still lose contingent entitlement to the estate of other relatives.

Question 40

Illegitimate children?

Answer 40

• Intestacy rules apply regardless of whether or not particular individual’s parents married.
• Presumed that the individual has not been survived by their father or by any person related to them through their father unless contrary is shown.
• Presumption avoids any necessity for PRs to make enquires re identity/whereabouts of father.
• Presumption does NOT apply where father named on intestate child’s birth certificate.