W2 Flashcards
What is the significance of testamentary capacity in making a valid will?
To make a valid will, the testator must have testamentary capacity. This means they must understand the nature of the act, appreciate the extent of their property, understand and appreciate moral claims against their estate, and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will.
What are the requirements for a valid will in England & Wales?
To make a valid will in England & Wales, a testator must be aged 18 or over, have testamentary capacity, understand the nature of the act and its effects, appreciate the extent of their property, understand and appreciate moral claims, and have no disorder of the mind that affects their judgment. No specific wording or form is required, and a testator has testamentary freedom to leave their property to whomever they choose.
What is the purpose of the golden rule in relation to making a will?
The golden rule suggests that when taking instructions for a will from an elderly or seriously ill client, a medical practitioner should be instructed to assess the testator’s capacity and make a contemporaneous record of the assessment and conclusion. While not a legal obligation, following the golden rule reduces the likelihood of later disputes regarding testamentary capacity.
What is the burden of proof in establishing testamentary capacity?
The burden of proof technically lies with the propounder of the will, who seeks to admit the will to probate. However, capacity is presumed if the will appears rational on the face of it and has been duly executed. If someone wishes to challenge the validity of the will based on lack of capacity, they must provide evidence sufficient to raise doubt.
What are the timing requirements for testamentary capacity?
A testator must have testamentary capacity at the time the will is executed. However, there is a limited exception established by Parker v Felgate, where a testator who lacks testamentary capacity at the time of execution can still make a valid will if they had capacity when giving instructions for the will and the will was prepared in accordance with those instructions.
What factors may affect a testator’s testamentary capacity?
A testator’s testamentary capacity may be affected by factors such as fluctuating capacity, particular life events, depression, and other mental health conditions. It is important to consider the effect of these factors on a testator’s decision-making abilities when assessing their testamentary capacity.
What happens if a person dies without making a valid will?
If a person dies without making a valid will, their assets will be distributed in accordance with a statutory order, which may not reflect their wishes. The intestacy rules will determine who will inherit the assets that were not disposed of by a valid will.
What is the concept of testamentary freedom?
Testamentary freedom refers to the ability of a testator to leave their property to whomever they choose. In England & Wales, no specific wording or form is required for a valid will, and a testator has the freedom to distribute their property as they wish.
What is the purpose of the IPFDA 1975 in relation to wills?
The IPFDA 1975 allows certain individuals to make claims against an estate if they have not been adequately provided for in a will. It sets out the time limit, applicants, and grounds for such claims.
What are the formal requirements for making a valid will?
No specific wording or form is required to make a valid will in England & Wales. However, a testator must be aged 18 or over, have testamentary capacity, understand the nature of the act and its effects, appreciate the extent of their property, understand and appreciate moral claims, and have no disorder of the mind that affects their judgment.
When can a solicitor accept instructions for the preparation of a will from a client?
A solicitor should not accept instructions for the preparation of a will if the client lacks testamentary capacity. However, if the court authorizes the execution of a will on behalf of an adult who lacks capacity, a solicitor may proceed with the instructions.
What are the requirements for making a valid will?
To make a valid will, a testator must have testamentary capacity, know and approve of the contents of their will, and comply with the requirements of the Wills Act 1837. Additionally, the testator must intend to make a will and intend to make the will they sign, which requires knowledge and approval of its contents.
What is the significance of knowledge and approval in the validity of a will?
Knowledge and approval are essential for the validity of a will. They are presumed if the testator has testamentary capacity, but the presumption can be rebutted in the presence of suspicious circumstances. Lack of knowledge and approval can render a will invalid. The burden of proof then shifts to those seeking to enforce the will.
What is the effect of undue influence on the validity of a will?
A will (or gift within it) made as a result of undue influence will be invalid. Undue influence occurs when a testator is coerced into making a will or including particular terms against their judgment and true intention. It goes beyond persuasion and requires evidence to prove.
What is the significance of the attestation clause in proving knowledge and approval?
If there is no presumption of knowledge and approval, an attestation clause that addresses knowledge and approval can help prove its presence when submitting the will to probate. It may also be possible to take steps in advance to mitigate the risk of having to prove knowledge and approval later.
What is the distinction between undue influence and persuasion in relation to wills?
Undue influence occurs when a testator is coerced into making a will or including particular terms against their judgment and true intention. It goes beyond persuasion, which involves convincing the testator through a convincing argument. The distinction between the two is not always clear and depends on the presence of coercion.
What is the burden of proof in establishing undue influence in relation to wills?
The burden of proving undue influence lies with the person making the allegation. The court requires evidence to demonstrate that the testator was coerced into a course of action and did not genuinely exercise choice. There is no presumption of undue influence in relation to testamentary dispositions.
What is the purpose of an affidavit of knowledge and approval in relation to wills?
An affidavit of knowledge and approval may be needed when submitting a will to probate if there is no presumption of knowledge and approval. It can help provide evidence of knowledge and approval when the attestation clause does not address this aspect.
How can the risk of having to prove knowledge and approval be mitigated in advance?
To mitigate the risk of having to prove knowledge and approval later, steps can be taken in advance. For example, if a client has a medical condition that renders them unable to read or understand the will, the attestation clause can be drafted to reflect the steps taken to ensure the testator fully understood the document they were signing.
What are the requirements for a valid attestation clause in relation to wills?
The requirements for a valid attestation clause depend on the circumstances. For example, if a testator is blind, unable to read English, or physically unable to sign, the attestation clause should reflect these conditions and the steps taken to ensure the testator understood the document they were signing.
How does the physical and mental strength of the testator affect the determination of undue influence?
The physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will. A weak or ill testator may be more susceptible to undue influence.
What is the relevance of fairness in determining the validity of a will?
Whether or not the court considers the testator’s will to be fair is irrelevant. The question is whether, in executing the will, the testator acted as a free agent.
What are the formal requirements for making a valid will according to the Wills Act 1837?
To make a valid will, a testator must have testamentary capacity, know and approve of the contents of their will, and comply with the requirements of section 9 of the Wills Act 1837. This includes the will being in writing, signed by the testator (or someone else on their behalf), and witnessed by two adult witnesses.
What happens if a beneficiary acts as a witness to a will?
If a beneficiary (or their spouse/civil partner) acts as a witness to a will, the gift to the beneficiary is void. However, the will as a testamentary document remains valid.
What are the requirements for a valid signature in a will?
A valid signature in a will can be made by the testator themselves or by some other person in the testator’s presence and by their direction. Any mark may constitute a signature if the testator intends it to be. It is preferable for a testator to use their normal signature to avoid doubt.
How many witnesses are required for a valid will?
A valid will requires two or more witnesses. The witnesses must be physically and mentally present at the same time as the testator when the signature is made or acknowledged. There is no maximum number of witnesses.
What should be included in the attestation clause of a will?
An attestation clause describes the circumstances under which the will was executed. It is not legally required to include an attestation clause, but a properly drafted one raises a presumption of due execution. The clause should be amended to reflect any special circumstances and provide evidence of the requisite knowledge and approval.
What are the key aspects to consider when drafting non-dispositive clauses in a will?
When drafting non-dispositive clauses in a will, it is important to start with an appropriate precedent and insert, amend, or remove clauses according to the client’s instructions. The will should include introductory clauses, appointment of executors and guardians, dispositive clauses, administrative provisions, and execution/attestation clauses.
Who can act as an executor in a will?
Any adult with mental capacity may act as an executor in a will. The appointment of a law firm partnership requires all partners to be appointed, while an LLP and trust corporation can be appointed directly. Most wills appoint executors and trustees in the same clause and appoint the same people in both capacities.
What powers do executors and trustees have in carrying out their role?
Executors and trustees have powers to carry out their role as stated in the administrative clauses of a will. Express powers take priority over statutory and common law defaults.
What is the purpose of the introductory clauses in a will?
The purpose of the introductory clauses in a will is to identify the testator (stating their full name and address) and, sometimes, their occupation. It may also include any other name the testator is known by or assets owned in another name.
Why is it important to include a revocation clause in a will?
Including a revocation clause in a will ensures that all former wills and testamentary dispositions are revoked, leaving only one valid will at any given time. While a will is valid without a revocation clause, including one helps avoid uncertainty.
What are burial and funeral wishes in a will?
Burial and funeral wishes in a will refer to the testator’s specific instructions regarding the use of their body for transplantation, as well as their desired burial and funeral arrangements. While these instructions are not legally binding on the personal representative, they are typically followed where possible.
Why is it important to appoint at least two executors in a will?
Appointing at least two executors in a will is important in case a sole executor does not survive the deceased or is unwilling/unable to act. This ensures that there is always someone available to administer the estate and fulfill the responsibilities of an executor.
What is the significance of including a charging power for professional executors and trustees?
Professional executors and trustees may charge for their time and services. Including an express charging power in the will clarifies their entitlement to reasonable remuneration for the services they provide. This is important because professional executors and trustees have statutory restrictions on charging.
Why should a testator include specific gifts in their will?
Including specific gifts in a will allows the testator to designate certain assets or items to specific individuals. This ensures that those individuals receive the intended gifts and helps avoid disputes or confusion.
What is the purpose of general gifts in a will?
General gifts in a will refer to gifts of a particular type or category, rather than specific assets or items. These gifts are typically made to individuals or groups and can include things like cash, stocks, or personal property.
What is a residuary gift in a will?
A residuary gift in a will refers to the gift of the remaining assets or estate after all specific, general, and pecuniary gifts have been distributed. It ensures that any assets not specifically mentioned in the will are accounted for and distributed according to the testator’s wishes.
Is receiving payment for services under section 29 TA 2000 a breach of fiduciary duty?
No, receiving payment for services under section 29 TA 2000 or an express charging clause is not a breach of fiduciary duty.
What happens if a will contains no express administrative powers?
If a will contains no express administrative powers, then only statutory and common law powers will apply. This is also the case when someone dies intestate (without having made a will).
What are express administrative powers in a will?
Express administrative powers in a will override default powers and may restrict, re-state, or expand the default position. They may also create new powers that would not otherwise exist. Professionally drafted wills usually contain express administrative provisions that reflect the needs of the client.
What is the purpose of an attestation clause in a will?
An attestation clause describes the circumstances in which the will was signed. It usually states that the will was executed in the presence of two or more witnesses who attest the execution, confirming the requirements for due execution as per the Wills Act 1837.
What is the purpose of including alternative substitute gifts in a will?
Alternative substitute gifts can be included in a will to ensure that a beneficiary receives something even if it is not possible to give effect to the original gift. For example, an alternative item or cash equivalent can be specified to take effect only if the gift of the original item does not.
What should be considered when making a gift of a collection?
When making a gift of a collection, it is important to clearly identify the collection to avoid uncertainty. The will should specify how agreement should be reached if a division is required, the time frame for deciding on a division, and how any failure to agree within that time should be resolved.
What are chattels and how are they defined in a will?
Chattels are personal possessions that are included in a person’s succession estate when they die. In a will, chattels are defined by section 55(1)(x) of the Administration of Estates Act 1925, which includes all tangible movable property except for money or securities for money, assets used solely or mainly for business purposes, and assets held solely as an investment.
What is a general legacy and how does it differ from a demonstrative legacy?
A general legacy is a gift of property that is not distinguished from property of a similar type. It can be specific (e.g., a particular item) or general (e.g., a gift of cash). A demonstrative legacy, on the other hand, is a type of general legacy that is directed to be paid out of a specified fund. If the specified fund no longer exists or is inadequate, the beneficiary is entitled to receive what is left in the fund and the balance of the legacy is paid as a general legacy.
What is a pecuniary legacy and how is it typically expressed in a will?
A pecuniary legacy is a gift of money. It can be specific (e.g., a specific amount of money) or general (e.g., a gift of cash). In a will, a pecuniary legacy clause often contains the amount of the gift in both numbers and words to avoid errors in typing a numerical figure.
What is a residuary legacy and what does it include?
A residuary legacy is a gift of all the testator’s property that has not already been disposed of under the will or any later codicil. It includes all property capable of passing by the will that is not part of specific gifts, general legacies, or demonstrative legacies.
What should be considered when making a gift of a specific collection of chattels?
When making a gift of a specific collection of chattels, the collection must be clearly identified to avoid uncertainty. The will should specify how agreement should be reached if a division is required, the time frame for deciding on a division, and how any failure to agree within that time should be resolved.
When should a trust be imposed in a residue clause?
A trust should generally be imposed in a residue clause when a beneficiary is given a life interest in the residue, a discretionary trust of the residue is to be set up, the residue is given to more than one person, or there are contingent or minor interests. The clause should be drafted to cover the declaration and terms of the trust.
What is a substitution clause in a residue clause?
A substitution clause in a residue clause comes into effect if the primary gift fails. It specifies an alternative beneficiary or beneficiaries to receive the residue in case the original gift does not take effect. This helps avoid partial intestacy and ensures that the testator’s intended distribution is carried out.
Why are express substitution clauses and ultimate gift over clauses used in will drafting?
Express substitution clauses and ultimate gift over clauses are used in will drafting to reduce the risk of partial intestacy and ensure that the testator’s intended distribution is carried out. They provide for alternative beneficiaries or specify who should receive the estate in the event that other gifts fail.
What is the significance of the date from which a will speaks?
The date from which a will speaks determines when the subject matter or object of a gift should be ascertained. Unless a contrary intention is shown, a will speaks from the date of the testator’s death. However, certain wording in the will can demonstrate a contrary intention and make the date of execution the relevant date.
What are some examples of wording that demonstrate a contrary intention in a will?
Examples of wording that demonstrate a contrary intention in a will include the use of words like ‘my’, ‘now’, or ‘at present’ when describing a gift. These words make the date of execution of the will the relevant date instead of the date of the testator’s death.
How are collections and shares treated in relation to the date from which a will speaks?
Collections and shares are treated in relation to the date from which a will speaks by considering the items included in the collection or the number of shares owned at the date of the testator’s death. This is unless the testator expressly states otherwise in the will.
What happens if an asset given by an earlier gift in a will fails?
If an asset given by an earlier gift in a will fails, the subject matter of the gift will usually pass under the residue clause instead. This means that the item that has not already been given away will become part of the residue and distributed accordingly.
What are relieving provisions in a will?
Relieving provisions in a will deal with matters such as who should bear the burden of taxes, charges, expenses, and costs of transfer. They provide clarity on how these financial aspects should be handled and ensure that the testator’s intentions regarding the distribution of the estate are properly addressed.
What are some specific rules of construction in will drafting?
Some specific rules of construction in will drafting include the rule that a will speaks from death in respect of the items given unless a contrary intention is shown, the rule that specific gifts are made subject to expenses and costs of transfer, and the rule that a gift of property subject to a charge bears the liability of that charge. These rules help guide the interpretation of the will and ensure that the testator’s intentions are properly understood.
What are the general rules regarding inheritance tax and expenses/costs of transfer in a will?
In the absence of express provisions, an individual gift in a will is made free of inheritance tax (IHT) and IHT would be payable out of the residue as a general testamentary expense. Similarly, in the absence of any express provision, specific beneficiaries bear the burden of the cost of delivery of the item of property to them and expenses incurred since the date of death in preserving the item or ensuring its upkeep.
How can a testator relieve a property of a charge in a will?
A testator can expressly relieve a property of a charge in a will. By doing so, the charge becomes a general debt of the estate to be paid out of the residue.
What is the purpose of Section 21 of the Administration of Justice Act 1982?
Section 21 of the Administration of Justice Act 1982 allows the courts to rule on the construction of a will when its meaning is unclear or ambiguous. The court’s role is to determine the meaning of the words within the will and give effect to the testator’s intention.
Under what circumstances can extrinsic evidence be submitted in relation to the construction of a will?
Extrinsic evidence (evidence that is not from the will itself) may be submitted in the following circumstances: if the will or any part of it is meaningless, if the language used in any part of it is ambiguous on the face of it, or if the will is ambiguous in light of the surrounding circumstances. Extrinsic evidence is used to help with the construction of the will, not to vary or contradict the language used by the testator in the will.
What is the effect of the commorientes rule in relation to two deaths occurring within a short period of time?
Under the commorientes rule, if two deaths occur within a short period of time and the order of death is uncertain, the eldest is deemed to have survived the younger. This can have implications for the distribution of assets and potential tax liabilities.
What is the purpose of a survivorship clause in relation to two deaths occurring together or in very close succession?
A survivorship clause in a will specifies that in order to take a particular gift, the beneficiary must survive the testator by a specified period of time. This clause helps avoid problems and confusion regarding two deaths that occur together or in very close succession.
What is the role of the court in determining the construction of a will?
The court has the power to determine the effect of a will and the overriding principle regarding construction is that the intention of the testator should be given effect to. The court’s role is to determine the meaning of the words within the will and what the testator intended by these, not to look behind the will to identify any other ‘real’ intention.
What is the effect of Section 4 of the Inheritance Tax Act 1984?
Section 4 of the Inheritance Tax Act 1984 treats deaths as simultaneous when the order of death is unknown. For inheritance tax purposes, neither person inherits from the other, and the estates are taxed separately. Property that passes from the first to die to the second to die is not taxed again in the second estate.
