Unit 1 Validity of wills and intestacy

Question 1

Property passing outside the will and the intestacy rules

Answer 1

• Joint property held as joint tenants
  Interests passes to the surviving tenant.
• Insurance policies
  Benefit of life assurance policy belongs to them.
  Can write policy in trust for the benefit of specified individuals.
• Pension benefits
  Many pension schemes provide for the payment of benefits if an employee dies ‘in service’.
• Trust property
  Many equitable interests come to an end on the beneficiary’s death, eg life interests.
  Devolve according to the terms of the trust and not the deceased life tenant’s will.

Question 2

The requirements for a valid will

Answer 2

All 3 requirements must be met:
* Testator must have the necessary capacity
* Must have intention
* Must observe the formalities for execution of wills laid down in the Wills Act 1837.

Question 3

The requirements for a valid will - capacity - the test

Answer 3

18+ (with certain limited exceptions) and must have the requisite mental capacity.

Banks v Goodfellow test = ‘soundness of mind, memory and understanding’.
Testators must understand:
(a) the nature of their act and its broad effects (the fact that they are making a will which will have effect on their death);
(b) the extent of their property (although not necessarily recollecting every individual item); and
(c) the moral claims they ought to consider (even if they decide to reject such claims and dispose of their property to other beneficiaries).

General rule is that testators must have capacity at the time they execute their wills. Exception:
Valid if the testator has capacity when they give instructions for the will to a solicitor, who prepared will accordingly, even if they lose capacity by the time the will is executed -they appreciate that they are signing a will prepared in accordance with their previous instructions.

It should be borne in mind that if a testator is mentally incapable of making a valid will, a ‘statutory will’ may be made on their behalf executed an authorised person.

Question 4

The requirements for a valid will - capacity - the ‘golden rule’

Answer 4

If mental state in doubt solicitor should follow golden rule - 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.

The solicitor should record their own view of the testator’s capacity in a file note - should be kept on the file in case someone challenges the validity of the will.

Question 5

The requirements for a valid will - capacity - The burden of proof

Answer 5

General rule = for the person who is asserting that a will is valid to prove it.
However, executors can rely on a presumption

Presumption of capacity =
applies if the will is rational on its face and the testator showed no evidence of mental confusion before making the will.
Burden on challenger.

Question 6

The requirements for a valid will - intention

Answer 6

When the will is signed, the testator must have both general and specific intention.

Must intend to make a will and intend to make the will now being executed. Exception: intention when give instructions, sign in accordance with previous instructions.

Question 7

The requirements for a valid will - intention - Burden of proof

Answer 7

General rule = person asserting that a will is valid to prove it.
Usually, it is not necessary to prove intention because a presumption of knowledge and approval arises.

Presumption does not apply in the situations listed below:
* Testator blind/ illiterate/ not signing personally
* Suspicious circumstances
surrounding the drafting and/ or execution of the will

Question 8

The requirements for a valid will - intention - challenge

Answer 8

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:

• Force or fear (through actual or threatened injury), or
• Fraud (eg after being misled by some pretence), or
• 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.
• Mistake
  If all or part of the will was included by mistake. Any words included without the knowledge and approval of the testator will be omitted from probate.
  Misunderstanding as to the true legal meaning of words used in the will, will not be omitted.

Question 9

Formalities of execution - s 9 Wills Act 1837

Answer 9

• The will must be in writing.
• The will must be signed.
  Any kind of signature is acceptable provided the testator intends the signature to represent their name.
  Section 9 allows another person to sign the will on the testator’s behalf in the testator’s 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.
• The testator must have intended to give effect to the will by his signature.
• The signature must be witnessed.
  2 stages:
  1.testator’s signature must be made or acknowledged in the presence of two witnesses. The two witnesses must be present at the same time.
  2. the witnesses to sign the will in the presence of the testator (but not necessarily in the presence of each other).
  ‘Presence’ requires mental and physical presence.
  Acknowledging signatures is an alternative if the witnesses were not present at the signing stage - the person confirms that the signature is theirs.
  Witnesses cannot receive gifts so no beneficiary but can be executor.
• Remote witnessing.
  Videoconference.
  Allowed on wills 31 jan 2020 - 31 January 2024.
  It applies only where testators sign their wills themselves.
  Procedure is not straightforward.

Question 10

Formalities of execution - s 9 Wills Act 1837 - exemptions

Answer 10

A will made on actual military service or by a mariner or seaman at sea may be in any form, including a mere oral statement.
Only requirement is that the ‘testator’ intends to dispose of his property after his death.

Question 11

Formalities of execution - burden of proof

Answer 11

General rule = it is for the person who is asserting a will is valid to prove it.
In most cases, no proof is necessary because there is a presumption of due execution - arises if the will includes a clause which recites that the s 9 formalities were observed e.g. attestation clause.
If none then need affidavit of due execution from any person present or affidavit of handwriting evidence.

Question 12

Formalities of execution - solicitors duties

Answer 12

Clear instructions to their clients explaining how to sign and witness the will, and warning that beneficiaries and those married to beneficiaries should not be witnesses.

If the testator executes the will at home, the solicitor should ask them to return the will so that the solicitor can check that s 9 appears to have been complied with and that the witnesses are not beneficiaries or their spouses or civil partners.

Failure to carry out these duties may lead to liability in negligence. It has been held that solicitors preparing wills owe a duty of care to the prospective beneficiaries.

Question 13

Intestacy

Answer 13

Operate in 3 situations:
1. Where there is no will (total intestacy).
2. 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).
3. Where there is a valid will, but it fails to dispose of all the deceased’s estate (partial intestacy).

Question 14

Intestacy - The statutory trust

Answer 14

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

Trust provides that the PRs must pay the funeral, testamentary and administration expenses (such as legal fees and any tax), and any debts of the deceased.
If necessary, the PRs can sell assets from the estate in order to raise cash to pay these debts and 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.

PRs have power to appropriate assets in or towards satisfaction of a beneficiary’s share (with the beneficiary’s consent).

Question 15

Intestacy - distribution - surviving spouse or civil partner and issue - definition’s

Answer 15

• Spouse/ civil partner
  Spouse = the person the deceased was married to at the time of their death.
  All spouses are treated equally, so the nature or ‘quality’ of the relationship is irrelevant.
  Former spouse is excluded but only from the point when the divorce is actually finalised, and the marriage is legally at an end.

A voidable marriage (if under duress or suffering mental disability) is valid until such time until the court makes a nullity order.

Spouses and civil partners are treated the same.

• Issue
  = all direct descendants of the deceased: ie children, grandchildren, great grandchildren, etc.
  Adopted children (and remoter descendants) are included, as are those whose parents were not married at the time of their birth.
  Step children are not issue of the deceased unless adopted.

Question 16

Intestacy - distribution - surviving spouse or civil partner and issue - entitlement

Answer 16

If both survive distributed as follows:
(a) The spouse or civil partner receives the personal chattels absolutely = tangible moveable property, other than any such property which–
(i) consists of money or securities for money, or
(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) In addition, the spouse or civil partner receives a ‘statutory legacy’ free of tax and costs plus interest from death until payment. The ‘statutory legacy’ is a set amount fixed by Parliament and for deaths on or after 26 July 2023 is £322,000 (used to be 270k). 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 (if any) is divided in half. One half is held on trust for the spouse or civil partner absolutely. The other half is held for the issue on the statutory trusts.

Spouse or civil partner must survive the intestate for 28 days in order to inherit. If not distributed as if dead before.

Question 17

Intestacy - distribution - surviving spouse or civil partner and issue - The family home

Answer 17

If held in interstates sole name or tenants in common, home = part of residuary estate.

Can require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate if the spouse/ civil partner is living in the property.

If the property is worth more than the entitlement of the spouse or civil partner, the spouse/ civil partner may still require appropriation provided they pay the difference to the estate.

Must formally elect to exercise this right and notify the PRs in writing within 12 months of the grant of representation

Question 18

Intestacy - distribution - surviving spouse or civil partner and issue - Applying the statutory trusts

Answer 18

Part of the estate which does not pass to the surviving spouse passes to the intestate’s issue on ‘the statutory trusts’.

(a) Primary beneficiaries = children of the intestate who are living at the intestate’s death.
Remoter issue are not included, unless a child has died before the intestate.

(b) Interests of the children are contingent upon attaining the age of 18 or marrying/civil partnership (age to marry is 18 anyway).
= vested interest.

(c) If any child of the intestate predeceased the intestate, children take their deceased parent’s share equally between them, contingently upon 18/marriage.
Great grandchildren would be included only if their parent had also predeceased the intestate.

(d) If children or issue die without attaining a vested interest but leaving issue, they will be treated as having predeceased the intestate so that they can be replaced by their own issue.

Question 19

Intestacy - distribution - no surviving spouse or civil partner - Entitlement

Answer 19

None or where the spouse dies within 28 days of the intestate, the residuary estate is divided between the intestate’s relatives:
(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).

All or nothing basis. - if anyone falls within the category, they will receive the whole of the entitlement.

Statutory trusts = mean their children.

Question 20

Intestacy - distribution - no surviving spouse or civil partner - illegitimate children

Answer 20

An individual whose parents were not married to each other, it is presumed that the individual has not been survived by their father or by any person related to them through their father unless the contrary is shown.
Presumption does not apply where the father is named on the intestate child’s birth certificate