Validity of wills and intestacy Flashcards
Property passing outside the will and intestacy rules - Definition
A no. of different kinds of property pass independently of the terms of any will or the intestacy rules. E.g:
- Joint property
- Insurance policies
- Pension benefits
- Trust property
Property passing outside the will and intestacy rules - Joint property
Where property is held by more than one person as beneficial joint tenants on the death of one joint tenant their interest passes by survivorship to the surviving joint tenants. However if its held as tenants in common then it will pass under their will
Property passing outside the will and intestacy rules - Insurance Policies
With a simple policy of life assurance when the person dies the policy matures and the insurance company pay the proceeds to the PRs who will distribute the money according to the terms of any will or intestacy rules.
Property passing outside the will and intestacy rules - Insurance Policies - Given away or held on trust
Once the 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 regardless of the will
Property passing outside the will and intestacy rules - Pension Benefits
Usually a lump sum is calculated on the basis of an employee’s salary at the time of their death is paid by the trustees of the pension fund to members of the family or dependants
chosen at the trustees’ discretion in accordance with a letter of wish from the deceased
Property passing outside the will and intestacy rules - Trust property
The deceased may have had an equitable interest as a beneficiary of a trust. Many equitable interests 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. Life interests cannot be transferred via will
Analysis of beneficial entitlements on death
The solicitor will need to deal with the deceased’s assets in the following order:
1) Property passing outside the will
2) Property passing under the will
3) Any property not disposed of in 1 or 2 and thereby passing on intestacy
Specific Gift
A gift of a specific item which is distinguished in the will from the rest of the assets
General Gift
A gift of an item corresponding to a description. If the testator does not own the items at death the executors must obtains the items using funds obtained from the estate
Demonstrative gift
A gift that is general in nature but is directed to be paid from a specific fund
Pecuniary Gift
A gift of money
Residuary gift
Leaving the rest of the money and property. It comprises all the money and property left after the testator’s debts, the expenses of dealing with the estate and the other gifts made under the will
have all been paid.
Requirements for a valid will
1) Capacity
2) Intention
3) Formalities
All 3 need to be met. A failure to meet one invalidates the will.
Capacity - Requirements
1) Must be 18+
2) Must have requisite mental capacity:
- must understand the nature of their act and its broad effects (the fact they are making a will)
- must understand the extent of their property
- must understand the moral claims they ought to consider - implications of what they’re doing
They must not be suffering from any insane delusion which affects the disposition of property
Capacity - General rule
Testators MUST have capacity at the time they execute their wills. If the testator lacks capacity the will is void
Capacity - Exception
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 signing a will prepared in accordance with their previous instructions.
Capacity - What should a solicitor do for a testator whose mental state is in doubt?
A solicitor must 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.
Capacity - Presumption of capacity
The presumption applies if the will is rational on its face and the testator showed no evidence of mental confusion before making the will. 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.
Capacity - Burden of proof
Burden is on the person challenging the will to prove lack of capacity
Intention - General rule
When the will is signed the testator must have both general and specific intention. The testator must intend to make a will as opposed to any other sort of document. The testator must also intend to make the particular will being executed.
The testator must KNOW AND APPROVE the contents of the will
Intention - Presumption of knowledge and approval
A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval - he knew and approved of the contents and had the intention.
Intention - Presumption of knowledge and approval - When this presumption doesn’t apply
1) If the testator is blind/illiterate/not signing personally.
2) Suspicious Circumstances surrounding the drafting and/or execution of the will e.g the will is prepares by a major beneficiary or someone who is a close relative of a major beneficiary
The executor must prove that the testator did actually know and approve the will’s contents
Challenging the will when the testator has capacity and appears to have known and approved of the contents of the will
Must prove one or more of the following:
1) Force or fear - through actual or threatened injury
2) Fraud
3) Undue influence - coercion or duress
It is necessary to prove undue influence in relation to a will. This makes
it very difficult for a person to challenge a will on this basis. They will need to collect evidence from family, friends and carers.
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
Formalities of execution
No will shall be valid unless:
1) It is in writing and signed by the testator or by some person in his presence and by his direction
2) It appears that the testator intended by his signature to give effect to the will
3) The signature is made in the presence of two witnesses present at the same time
4) Each witness either signs in the presence of the testator but not necessarily in the presence of each other
Formalities of execution - Witness who is a beneficiary
If either of the witnesses is a beneficiary under the will or is the spouse of a beneficiary the will remains valid but the gift to the witness fails
Formalities of execution - Presumption of due execution
Arises if the will includes an attestation clause which recites that the formalities were observed. If the will doesn’t contain this clause the Probate registry will require an affidavit of due execution from a witness or any other person who was present during the execution
When do the intestacy rules apply?
1) When there is no will either because the deceased never made a will at all or all wills have been successfully revoked
2) Where there is a will but it is invalid or if it is valid but fails to dispose of any of the deceased’s estate
3) Where there is a valid will but it fails to dispose of all the deceased’s estate (partial intestacy) - the rules apply only to that part of the estate not disposed of by the will
Intestacy - The statutory trust
The trust provides that the PRs must pay the funeral, testamentary and administration expenses and any debts of the deceased. The balance remaining is the residuary estate to be shared among the family under the rules of distribution
Intestacy - Distribution where there is a surviving spouse or civil partner and issue - Order of distribution
1) Spouse/civil partner receives personal chattels
2) Spouse/civil partner receives statutory legacy free of tax - £322,000 (from the estate). If the residue is less than £322,000 then the spouse gets it all
3) Rest of residuary estate is divided in half one half is held on trust for the spouse and the other half is held on trust for issue
Spouse or civil partner must survive the testator by 28 days
Intestacy - Distribution where there is a surviving spouse or civil partner and issue - Requirements for other beneficiaries
- Primary beneficiaries = children of intestate
- Interests of the children are contingent upon attaining 18
- If any child predeceased the intestate any children of the deceased child take their deceased parent’s share equally between them contingently upon attaining 18
Intestacy - Distribution where there is a surviving spouse/civil partner but no issue
Where the intestate leaves a surviving spouse but no issue the whole estate passes to the spouse. Other relatives such as parents are NOT entitled. Spouse must survive the intestate for 28 days
Intestacy - Distribution where there is no surviving spouse/civil partner
The residuary estate is divided between the intestate’s relatives in the highest cateory:
- Issue but if none
- Parents equally if both alive but if none
- Brothers and sisters of the whole blood but if none
- Brothers and sisters of the half blood but if none
- Grandparents equally if more than one but if none
- Uncles and aunts of the whole blood but if none
- Uncles and aunts of the half blood and if non
- The crown
When challenging the validity of a will what should you think of lodging
Need to immediately lodge a caveat with the probate service. Once a caveat has been entered, no grant can be issued until the caveat is removed or ceases to be effective. This will afford the court time to decide on the validity or otherwise of the will. An application for a caveat can be made online or using form PA8A and this should be done as soon as possible. A caveat lasts for six months although its duration can be extended
After applying for caveat what should you do
Send a letter to ‘beneficiary’ explaining/detailing client’s interest in estate and ask for their solicitor’s details to send them a letter
Burden of proof if any of the presumptions DON’T apply
On the ‘beneficiary’ or the person stating that the will is valid, to prove that they had:
- capacity
- intention
- signed in correct way
Burden if presumptions DO apply
On the person challenging. They will need to adduce evidence
Validity of will - What do you have to show for undue influence
Need to show coercion.
High evidential burden as it is a serious allegation. If they fail to substantiate such a claim then they are likely to be penalised in costs so need to tell client
