W8

Question 1

What is the purpose of mutual wills?

Answer 1

Mutual wills are wills made by a couple that mirror each other. They are commonly used to ensure that the survivor of the couple is bound by the terms of the agreement and cannot change their will after the death of their spouse. Equity can impose a constructive trust on the property of the survivor based on the terms previously agreed upon.

Question 2

How can a will be revoked?

Answer 2

A will may be revoked by destruction of the original with an intention to revoke, destruction by a third party at the testator’s direction and in their presence, an express revocation clause included in a later will, express wording in a codicil, or implication if a later will or codicil contains no express words of revocation. The earlier will is only revoked to the extent it is inconsistent with the later will or codicil.

Question 3

What is the significance of discrepancies between a later will and an earlier will?

Answer 3

In the case of discrepancies between a later will and an earlier will, the later will revokes the earlier will. The earlier will does not take priority in such cases.

Question 4

What happens if a testator attempts to revoke a mutual will?

Answer 4

If a testator has signed a mutual will, their property will be subject to a constructive trust should they attempt to revoke or change that will at a later date.

Question 5

Can a later will revoke an earlier will by implication?

Answer 5

Yes, it is possible for a later will to revoke an earlier will by implication.

Question 6

What is the difference between mutual wills and mirror wills?

Answer 6

Mutual wills are wills made by a couple that mirror each other, while mirror wills are wills that simply mirror each other without any agreement not to revoke them later. Mutual wills involve an agreement between the couple to be bound by the terms of the wills, while mirror wills do not have such an agreement and do not impose a constructive trust.

Question 7

What are the requirements for revoking a will by destruction?

Answer 7

A physical act of destruction is needed, such as burning, tearing, or otherwise destroying the will. Writing ‘revoked’ on the will would not be effective. Complete destruction of the original will by a testator who lacks capacity or intention is not effective, and the will remains valid.

Question 8

What is the general rule regarding the revocation of an earlier will?

Answer 8

The general rule is that a later will revokes an earlier will, except in cases where there are discrepancies between the two wills.

Question 9

Under what circumstances can a copy of a will be admitted to probate?

Answer 9

Affidavit evidence would be required for a copy of the will to be admitted to probate. Sufficient evidence must be provided to rebut the presumption of revocation, such as showing that a valid will existed when the deceased died but was lost or damaged after death, the deceased did not intend to revoke their will, and the deceased did not carry out or give instruction for the act of destruction.

Question 10

What should be considered when dealing with mutual wills?

Answer 10

Mutual wills are not common and should be approached with care. It is important to ensure that both parties fully understand the implications and consequences of the agreement. Legal advice may be necessary to ensure that the wills are properly drafted and executed.

Question 11

What is the effect of an amendment to a will on the revocation of the original gift?

Answer 11

If a testator amends their will by hand to substitute a new legacy/gift for an existing beneficiary, they may intend to revoke the original gift, but only if the new/amended version is valid. If the amendment is not valid, the original gift has not been revoked. Therefore, evidence of the original gift may be submitted to probate.

Question 12

What is the effect of a testator writing ‘revoked’ on their will?

Answer 12

• “I hereby declare this to be my last will”: Does not revoke previous wills or codicils.
• “I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will”: Effective to revoke previous wills and codicils.

Question 13

• “I hereby declare this to be my last will”: Does not revoke previous wills or codicils.
• “I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will”: Effective to revoke previous wills and codicils.

Answer 13

If another person destroys the will, it will not be effective unless it is at the direction of the testator and in their presence.

Question 14

What is the effect of a testator tearing up their will in front of a solicitor?

Answer 14

If a testator tears up their will in front of a solicitor, it constitutes an act of revocation with the intention to revoke. This effectively revokes the will. However, it is important to note that revocation by destruction requires physically destroying the original will, not just a copy.

Question 15

What are the presumptions regarding revocation when a will is missing or damaged?

Answer 15

If a testator is known to have made a will or codicil which they kept in their possession, but after the testator’s death the original document is missing, the testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise. If the will is damaged, the testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise.

Question 16

What is the purpose of an express revocation clause in a will?

Answer 16

An express revocation clause is usually included in every will as standard to ensure that all previous wills are revoked and there is only one valid will at any one time. Express words of revocation are required for the clause to be effective.

Question 17

What is the effect of executing a second will after a valid first will?

Answer 17

If a testator executes a second will after a valid first will, the second will may impliedly revoke the whole of the first will if it is dated later. The second will takes precedence and becomes the testator’s last will. However, if there are inconsistencies between the two wills, the first will may still be given effect to the extent they are consistent.

Question 18

What happens if a later will does not contain an express revocation clause?

Answer 18

If a later will does not contain an express revocation clause, the testator will have more than one valid will. In this situation, the combined effect is followed, but to the extent they are inconsistent, the later will impliedly revokes the earlier will, giving priority to the later will.

Question 19

A man leaves the following gifts in his will:

· My Rolex Watch to John

· My BT shares to Althea

· £5,000 to be paid from my Sussex Building Society account to Hayley.

At the time of his death the man no longer owned the original Rolex watch but had replaced this with a new Rolex Watch, his BT holding had increased to 200 shares from the 100 shares he had when he made the will and the Sussex Building Society account had a balance of £4,000.

Which of the following best describes what, if anything, each beneficiary will receive? (You do not need to consider issues of certainty regarding the identity of the beneficiaries.)

John will receive nothing. Althea will receive 100 BT shares and Hayley will receive £4,000 from the Building Society Account together with £1,000 from the general estate, provided there are sufficient funds.

John will receive the Rolex watch the man had when he died, Althea will receive the 200 BT shares and Hayley the £4,000 in the building Society.

John will receive the Rolex watch the man had when he died, Althea will receive 100 BT shares and Hayley the £4,000 in the building Society.

John will receive nothing. Althea will receive the 200 BT shares and Hayley will the receive the £4,000 from the Building Society Account.

John will receive nothing, Althea will receive the 200 BT shares and Hayley will the receive £4,000 from the Building Society Account together with £1,000 from the general estate, provided there are sufficient funds.

Answer 19

John will receive nothing, Althea will receive the 200 BT shares and Hayley will the receive £4,000 from the Building Society Account together with £1,000 from the general estate, provided there are sufficient funds.

Correct: The watch is a specific legacy. Under s.24 Wills Act the general rule is that the will speaks from the date of death. However, use of the word ‘my’ indicates a contrary intention to the general rule indicating the man was referring specifically to the watch he owned when he made the will rather than the watch he owned at the date he died.
As regards a holding of shares, or a collection of items that is capable of growing, the use of the word ‘my’ does not alter the general position and the gift is construed as the holding or contents of the collection at the date of death.
The gift of the money in the building society is a demonstrative legacy. if there are insufficient funds in the designated account these are made up from other assets in the estate in the same way as a general legacy.

Question 20

A woman dies, leaving a will which provides that her property is to be held upon trust for her husband for his life and after his death for such of her son and daughter as survive her husband and attain the age of 25 in equal shares.

The woman’s son is 23 and her daughter is 25.

Which of the following correctly describes the respective nature of the husband, son and daughter’s interests?

The husband and daughter have contingent interests and the son has a vested interest.

The husband and daughter have vested interests and the son has a contingent interest.

The husband has a vested interest and the children have contingent interests.

The husband and children have contingent interests.

The husband and children all have vested interests.

Answer 20

The husband has a vested interest and the children have contingent interests.

he husband has a vested interest in the capital. The children both have contingent interests. Whilst the daughter has satisfied the age contingency her interest is still contingent on surviving her father which is not yet satisfied. The son’s interest is contingent on reaching the age of 25 and surviving his father.

Question 21

A woman leaves the following gifts in her will:

· My house to my daughter Louise

· The residue of my estate to my son Theo.

Which of the following best describes where the legal burden of inheritance tax and the costs of transfer fall?

The residue bears the whole of the inheritance tax and the costs of transfer of the house.

The house and the residue bear the burden of inheritance tax equally and the house will bear the cost of transfer.

The house and the residue bear the burden of inheritance tax proportionately according to their value and the residue will bear the cost of transfer.

The house and the residue bear the burden of inheritance tax proportionately according to their value and the house will bear the cost of transfer.

The residue bears the whole of the inheritance tax and the house will bear the cost of transfer.

Answer 21

The residue bears the whole of the inheritance tax and the house will bear the cost of transfer.

Correct: In the absence of any alternative express provision in the will the burden of inheritance tax falls upon the residue of the estate and is a testamentary expense. By contrast, costs of transfer of any specific gift will fall upon the beneficiary.

Question 22

A woman leaves the residue of her estate in the following shares:

· 50% equally between my three children

· 50% equally between my brother and sister

One of the woman’s children has predeceased her leaving a daughter, the woman’s granddaughter. The woman’s brother has also predeceased her leaving a son, the woman’s nephew.

Which of the following best describes how the residue will be distributed?

The estate will be split equally between the three surviving named beneficiaries.

The daughter’s share will pass to the granddaughter. The sister will take the whole of the other 50% share in the residue.

The 50% share to the children will be divided between the surviving two children and the sister will take the whole of the other 50% in the residue.

The daughter’s share will pass to the granddaughter and the brother’s share will pass to the nephew.

The daughter’s share will pass to the granddaughter. The gift to the brother will fail and there will be a partial intestacy of his share.

Answer 22

The daughter’s share will pass to the granddaughter. The gift to the brother will fail and there will be a partial intestacy of his share.

Correct: S 33 Wills Act 1837 applies so that issue (children, grandchildren, great grandchildren etc) take the share their parent would have taken. The section does not apply to any other beneficiary so not to the brother’s share. This contrasts with the statutory trusts which apply on intestacy (s 47 AEA) where the substitution provision applies to all blood relatives. It is not the case that the sister takes her brother’s share unless it is expressly stated that the gift is to such of the named beneficiaries as survive and if more than one equally. This is not implied.

Question 23

A man instructs his solicitor to draw up his will. He wishes to include a gift to his solicitor of 20,000. He says that this is in appreciation of the many years of excellent service he has received from his solicitor. The man estimates his estate is worth around £100,000.

Which of the following best describes the position of the solicitor?

The solicitor may draft the will but should refuse the gift as he has already been paid for the work that he has carried out for the man.

The solicitor may draft the will but should refuse the gift as it is of significant value.

The solicitor must refuse to act for the client in this situation.

The solicitor may draft the will but should refuse the gift as this is a conflict of interest under the solicitor’s code of conduct.

The solicitor may draft the will and accept the gift provided the man first takes independent legal advice.

Answer 23

The solicitor may draft the will and accept the gift provided the man first takes independent legal advice.

Correct: There is no rule which prohibits a client making a gift by will to his or her solicitor. However, paragraph 6.1 of the Code of Conduct for Solicitors requires a solicitor not to act if there is an own interest conflict or a significant risk of an own interest conflict.
If a solicitor drafts a will where the client wishes to make a gift of significant value to the solicitor, a member of their family, or an another employee of the firm, the solicitor should be satisfied that the client has first taken independent legal advice with regard to making the gift. If the client does not agree to take independent advice the solicitor should cease to act on the instructions.
This includes situations where the intended gift is of significant value in relation to the size of the client’s overall estate, but also where the gift is of significant value in itself. In practice however, most firms will have their own rules which prohibit this.