Validity of wills and how property passes on death

Question 1

Do all assets pass under a Will?

Answer 1

Many valuable assests pass independently of the terms of the Will, therefore outside of a will.

Any assests that do not pass independently, or under a valid Will fall to be distributed according to the intentastcy rules.

Question 2

Does a joint property pass outside the will and intestacy rules?

Answer 2

Where the property is held by more than one person as beneficial joint tenants, on the death of one joint tenant, their interests passes by survivorship to the surviving joint tenants.

however, the doctrine of survivorship does not apply to land held as tenants in common. The share of a tenant in common passes on their death under their will or under the intestacy rules.

Question 3

Does insurance polices pass outside the will and intestacy rules?

Answer 3

Where a person takes out a simple policy of life assurance, the benefit of that policy belongs to them. On the person’s death, the policy matures and the insurance company will pay the proceeds to the deceased personal representatives who will distribute the money according to the terms of any will or intesacy rules.

However, a person may take out a life assurance policy and write in trust for the benefit of specified individuals, or a policy may be transferred to, or assigned to named beneficiaries.

Once a policy has been written in trust or given away, the benefit of the policy does not belong to the policy holder, on the policy holder’s death the policy matures and the insurance company will pay the proceeds to the named beneficiaries or to the trustees regardless of the terms of deceased will or intestacy rules.

Question 4

Do pension benefits pass outside the will and intestacy rules?

Answer 4

Many pension schemes provide discretionary schemes allowing employees to leave a letter of wishes for the trustees indicating which people they would like to benefit. The letter of wishes is not binding on the pension fund trustees, but they will normally comply with its terms.

Such pensions benefits do not belong to the employee during their lifetime and pass on death independently of the term of any will and intestacy rules.

Question 5

Does trust property pass outside the will and of the intestacy rules?

Answer 5

If the deceased has an equitable interest as a beneficiary of a trust, then the equitable interest will come to an end on the beneficiary’s death. In these situations, the trust property will devolve according to the terms of the trust and not the deceased life tenant’s will.

Question 6

On a person’s death, how will the solicitor deal with the deceased’s assests?

Answer 6

The solicitor will deal with assets in the following order:
(a) Property passing outside the will.
(b) Property passing under the will.
(c) Any property not disposed of in (a) and (b) passing on intestacy.

Question 7

What is a person making a will called?

Answer 7

Testator or testatrix if female

Question 8

What are some of the common clauses in a will?

Answer 8

Revocation clause
Direction as to disposal of the body
Appointment of executors
Gifts

Question 9

What are revocation clauses

Answer 9

These clauses revoke prior wills and it is important to include such a clause to make it clear that earlier wills are of no effects

Question 10

Clauses of direction as to disposal of the body

Answer 10

Some testators wish to include directions concerning how their body is to be disposed of. Such directions have no legal effect.

Question 11

Clauses of appointment of executors?

Answer 11

An executor is the person who deals with the testator’s affairs after their death. Their task is to collect in all the testator’s assets, pay the deceased’s debts and any inheritance tax and then distribute the remaining assests to whoever is entitled under the will.

After the person dies, the executor will make an application to His Majesty’s Courts and Tribunals Service Probate (HMCTS) for a grant of probate which confirms that the will is valid and that the executor has authority to act.

The grant will not be issued if there is any doubt as to the validity of the will.

Question 12

Clauses leaving gifts

Answer 12

There are gifts of ‘legacies’ which is the term of a gift of personalty; these are personal property made by a will other than land, such as an item of jewellery or a car.

There are also gifts classed as a ‘devise’ known as a gift of realty which is a gift by will of real property, such as a house.

However, the term ‘legacy’ is often used to cover realty and personalty.

Question 13

What are the requirements for a will to be valid? and the presumptions that come with each requriement

Answer 13

Capacity- presumption of capacity
intention- presumption of knowledge and approval
Formalities- presumption of due execution

Question 14

Explain the requirement of a capacity for a will to be valid.

Answer 14

In order to make a valid will, an indivudal must be aged 18 or over ( with certain limited exceptions) and must have the requisite mental capacity.

This Testamentary capacity was defined in Banks v Goodfellow as ‘sounds of mind’, memory and understanding’

Testators must understand:

(a) the nature of their act and its broad effects.

(b) The extent of their property, although not necessarily recollecting every individual item)

(c) The moral claims they ought to consider

In addition, the testator must not be suffering from any insane delusion which affects the disposition of property.

Question 15

What is an exception to the general rule that testators must have capacity at the time they execute their wills

Answer 15

Established in Parker v Felgate 1883- 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.

The will is valid if the instructions were given to a solicitor, who prepared the will in accordance with the instructions and at the time the testator executes the will, they appreciate that they are siding a will prepared in accordance with their previous instructions.

Question 16

What are statutory wills?

Answer 16

It is an exception to the formalities contained in s9 for a will to be valid.

If a testator is mentally incapable of making a valid will, a ‘statutory will’ may be made on their behalf under the Mental Capacity Act.

The court of protection empowers an authorised person to execute the will and then gives effect to the will by affixing the court seal.

The court of protection will require full details of the deceased, their family, property and previous will and will approve a draft will only if its in the testers best interests.

Question 17

What is the ‘golden rule’ suggested in Keyword v Adams

Answer 17

If the testator lacks capacity, the will is void. A solicitor preparing a will for a testator whose mental state is in doubt should follow the golden rule.

The 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.

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

Question 18

Where does the burden of proof lie in relation to asserting that the testator had the capacity therefore making the will valid?

Answer 18

The general rule is that it is for the person asserting that a will is valid to prove it. The question of whether the will is valid arises after the testators death, when the executors apply for a grant of probate.

This does make it difficult to gather evidence testators mental state when the will was made BUT there is the legal presumption of capacity which executors are able to rely on.

Question 19

What is the presumption of capacity?

Answer 19

This relates to the requirement of capacity for making a will valid.

In the vast majority of cases, executors do not have to prove capacity because there is a presumption that the testator satisfied the mental capacity test.

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

in the event that someone wishes to challenge the validity of the will on the ground that the testator lacked capacity, the burden shifts to the 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 will make it very difficult to challenge the will on the ground that the testator lacked capacity.

Question 20

Explain the requirement of intention for a will to be valid.

Answer 20

The tester must have both general and specific intention. This means that the testator must intend to make a will as opposed to any other sort of document and must also intend to make the particular will now being executed ie the testator must know and approve its contents.

Note that the exception in Parker v Felgate applies.

Question 21

Where does the burden of proof lie in relation to asserting that the testator had the intention, therefore making the will valid?

Answer 21

The general rule is that it is for the person asserting that a will is valid to prove it.

However usually it is not necessary to prove intention because a presumption of knowledge and approval arises.

Question 22

What is the presumption of knowledge and approval

Answer 22

This relates to the requirement of intention for making a will valid,

A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval. However this presumption does not apply in the situations listed below:

Testator is blind, illiterate, not signing personally- HMCTS will require evidence to prove knowledge and approval before they will issue a grant of probate. It Is usual in such cases to include a statement at the end of the will stating that the will was read over to the testator, or ready by the testator who knew and approved its contents.

Suspicious Circumstances- for example the will has been prepared by someone who is to be a major beneficiary under its terms or who is a close relative of a major beneficiary. Because the presumption does not apply in this situation the executor must remove the suspicion by proving that the testator did actually know and approve the wills contents.

Question 23

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

Answer 23

No, they should interview the testator in the absence of the third party to ensure that any will drafted reflects the testator’s wishes.

Question 24

If the testator with capacity appears to have known and approved the contents of the will, on what grounds could it be challenged?

Answer 24

Any person who wished to challenge the will most prove one or more of the following to prevent some or all of the will from being admitted.

• Force or fear
• Fraud
• Undue influence- whether the testator’s freedom of choice was overcome by intolerable pressure, but their judgement remained unconvinced. in the context of wills it means coercion or duress, persuasion is not enough.
• Mistake- the presumption of knowledge and approval does not apply 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.

important to note that there needs to be an actual mistake, if there is a misunderstanding then the words will not be omitted.

Question 25

What are the Formalities of execution for a will which is contained in section 9 of the wills Act?

Answer 25

*The will must be in writing
* The will must be signed
* The signature must be witnessed.

Question 26

Explain the formality of the will must being in writing?

Answer 26

It could be typed or handwritten, in braille or shorthand. The will does not have to be written on paper.

An electronic will held on a computer probably would not be considered ‘writing’. This is because s9 of the wills act seeks to prevent fraud and it would be too easy for a third party to change an electronic will.

Question 27

Explain the formality of the will must be signed ?

Answer 27

The testator should sign the will. Generally speaking any kind of signature is acceptable provided the testator intends the signature to represent their name. ( Any mark as a signature will suffice).

For example in the Estate of Cook 1960 a will signed ‘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.

Section 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 that they want the person to sign on their behalf.

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

Question 28

Explain the formality that the signature must be witnessed for a will to be valid

Answer 28

There are two stages:

1. The testators signature must be made or acknowledged in the presence of two witnesses. The two witnesses must be present at the same time.
2. The second stage is for the witnesses to sign the will in the presence of the testator.

Presence requires mental and physical presence. To be mentally present, the witnesses must be aware that the testator is signing a document. They do not have to know that it is a will.

To be physically present, they must see or be able too see the testator signing; there has to be an obstructed line of sight between the witness and the testator.

However, Acknowledging signatures is an alternative if the witnesses were not present at the signing stage. Acknowldegement means that the person confirms that the signature is theirs.

for example- a testator signs in front of one witness. Clearly this is not valid. A second person enters the room. The testator can acknowledge their signature infront of the second witness. Both witness then sign the will in the testor’s presence. this is a valid execution.

Alternatively, a tester signs the will infant of two witnesses. Witness 1 signs in the testators presence. The testator leaves the room to answer the telephone and witness 2 signs before the testator returns. The will is validly executed if witness 2 acknowledges their signature to the testator.

Question 29

What are privileged wills? and does S9 of the wills act apply

Answer 29

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

This is the one and only exception to the rule that wills must comply with the requirements of s9.

Question 30

Where does the burden of proof lie in asserting that a will is valid by complying with all the requirements set out in section 9.

Answer 30

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

Question 31

What is the presumption of due execution?

Answer 31

it applies to whether a will has been validly executed. The presumption arises if the will includes a clause which recites that the s9 formalities were observed, such as, ‘signed by the testatrix in our joint presence and then by us in hers’. such clause is called an attestation clause.

The presumption means that anyone challenging the validity of the will on the ground that is was not validly executed has the burden of proving this was the case.

Question 32

What happens if the will does not contain an Attestation clause?

Answer 32

HMCTS, will require an affidavit 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 failing that, an affadvidit of handwriting evidence to identify the testator’s signature, or they will refer the case to a judge.

Question 33

What must a solicitor ensure when drafting a will for a client

Answer 33

It is important for solicitors preparing wills to give clear instructions to their clients explaining how to sign and witness the will, and warning that beneficiaries and those married to benefcaires should not be witnessed.

It is preferable for the clients to execute at the solicitors office where execution can be supervised.

If the testaor executes the will at home, the solicitor should ask them to return the will so that the solicitor can check that s9 appears to have been complied with and that the witnesses are not beneficiaries or their spouses or civil partners.

Question 34

How can gifts in a will be classified?

Answer 34

Specific Gifts- This is a gift of a specific item or items which the testator owns, which is distinguished in the will from the rest of the testator assests.

General gift- This a gift of an item or items corresponding to a description. If the testaor does not own the items at death, the executors must obtain the items using funds obtained from the estate. An example would be ‘ I give shares in X PLC to my son’. If the testator does not own 100 such shares at his death, then they must be purchased.

Demonstrative gift- This is a gift that is general in nature but is directed to be paid from a specific fund, for example, ‘ I give £500 to x to be paid from nationwide savings account’. If the account exists at the date of the death and contains £500 or more, the legacy is paid from the account and is classified as specific.

If there is no account or it contains less than £500 the legacy is paid, in whole from the rest of the estate and to that extent is classified as general.

Pecuniary gift- This is a gift of money. This gift will usually be general, but could be demonstrative, or possibly even specific, for example, ‘I give the £100 held in the safe in the study’.

Residuary gift- a residuary gift comprises all the money and property left after the testator debts, the expenses of dealing with the estate and other gifts made under the will have all been paid.