Validity Of Wills And How Property Passes On Death, Entitlement, Revocation, Alterations And Intestacy Flashcards
What happens to a persons interest in the property if they held it as a joint tenant?
And why is it not the same as holding property as tenants in common?
On the death of one joint tenant their interest passes by survivorship to the surviving joint tenant(s).
Does not apply to land held as tenants in common - it will pass on their death under their will.
In what order will the solicitor deal with the deceased’s assets?
(A) property passing outside the will.
(B) property passing in the will.
(C) any property not disposed of in (a) and (b) passing on intestacy.
What happens if the person who died, gave clear instructions in their will on how to dispose their body?
Holds no legal effect, the testator should ensure that their close family and friends are aware of their wishes.
What can gifts also be referred to as?
Legacies
What are the requirements for a valid will?
(A) testators must have capacity at the time they execute their wills - ‘soundness of mind, memory and understanding’.
(B) testator must intend to make a will and approve its contents.
(C) must be in writing and signed by the testator. Signature must be done in the presence of 2 witnesses at the same time. Witnesses also need to sign in the presence of the testator, but not necessarily to each other.
Why don’t privileged wills need to follow the formality requirements?
These wills are made on military service or by a mariner or seaman at sea.
Therefore can be done in any form including an oral statement.
What happens to the validity of a will if a witness is a beneficiary or the beneficiary’s spouse in the will?
The will, will still be valid but the gift will not.
What should a solicitor do when preparing a will for a testator whose mental state is in doubt?
Should ask a medical practitioner to confirm and witness the will.
Who has the burden of proof to prove that the will is valid?
The person who states that the will is valid needs to prove it.
If someone wished to challenge the validity of the will on the ground that the testator lacked capacity.
Who has the burden of proof?
Burden of proof shifts to the challenger to prove lack of capacity.
Has to prove that the will is invalid.
What is the difference between executors and administrators?
People dealing with the estate will be called executors if they were appointed by the will.
If there was no appointment in the will, they will be called administrators.
What does it mean if you see an attestation clause in the will?
Presumption of due execution.
In which circumstances can you rectify a will?
Where the will fails to carry out the testators intentions and that failure has one of two causes
- Either in consequence of a clerical error.
- Failure to understand instructions.
Codicil
Supplement to a will which, to be valid, must be executed in the same way as a will - if the testator wishes to add or change a will in a minor way. It republishes the will as at the date of the codicil.
Survivorship clauses
Gifts in wills are made conditional upon the survival of the beneficiaries for a specific period of time, such as 28 days
