WAE 3 - Will drafting Flashcards
What are the key principles for drafting a will?
Use clear, concise, and unambiguous language
* Avoid colloquial or overly technical terms
* Draft clauses without punctuation
* Capitalize words that clarify the purpose (e.g., ‘I APPOINT’)
* Number paragraphs for clarity and reference
These principles help ensure the will is understood and legally enforceable.
What should a commencement clause include?
Full name and address of the testator
* Any aliases or alternative names used for assets
* Date of the will, either in the commencement or at the end
This information establishes the identity of the testator clearly.
Why include a revocation clause in a will?
- It expressly revokes all former wills and testamentary dispositions
- If absent, the latest will only revokes earlier wills to the extent of inconsistency
A revocation clause ensures that only the latest intentions are honored.
Are burial and funeral instructions legally binding?
No, but personal representatives typically follow them where possible
Who can act as an executor?
- Must not be a minor and must have mental capacity
- Bankrupt persons can act but may face restrictions
How many executors can be appointed?
- Minimum: 1 executor
- Maximum: 4 for grant of representation
- If a minor is a beneficiary, at least 2 trustees should be appointed
What should a testator consider before appointing an executor?
- Obtain their consent in advance
- Divorce/dissolution revokes a spouse’s appointment
- If appointing a law firm, specify partners at the date of death
- Professional executors can charge fees under an express charging clause or s29 Trustee Act 2000
These considerations help ensure the executor is willing and capable of fulfilling their role.
When does a guardian appointment take effect?
After the death of both parents
This ensures the guardian steps in only when needed.
What should be considered when appointing a guardian?
- Obtain consent from the guardian
- Consider financial provisions (e.g., conditional legacy)
- Ensure multiple guardians work well together
What are the different types of gifts in a will?
- Specific Gifts – Particular assets (e.g., jewellery, house, car)
- General Gifts – Non-specific (e.g., ‘a car’)
- Pecuniary Gifts – Fixed sum of money
- Residuary Gifts – Remaining estate after debts and other gifts are settled
What does an attestation clause confirm?
- That the will was properly executed under s9 Wills Act 1837
- The testator does not have to sign at the end, but it is best practice
What are the key types of gifts in wills?
- Legacy – A gift of personal property
- Devise – A gift of real property (land)
- Specific Gifts – A particular asset
- General Legacies – Non-specific gifts (e.g., ‘a car’)
- Demonstrative Legacies – A sum of money from a specific fund
- Pecuniary Legacies – A fixed sum of money
- Residuary Gifts – Remainder of the estate after debts and legacies
What happens if a specific gift is no longer in the estate at death?
- The gift adeems (fails)
- A substitute can be specified (e.g., ‘or such other violin I own at my death’)
How should a general legacy be worded?
Use ‘a’ instead of ‘my’ to avoid making it a specific gift
* Example: ‘I GIVE to [ ] a Hasselblad camera absolutely.’
What happens if the fund specified for a demonstrative gift is insufficient?
The remaining balance is paid as a general legacy.
What is a residuary gift?
The remainder of the estate after debts, taxes, and other gifts are paid.
How can intestacy be prevented in a residuary gift clause?
Include substitution clauses and disaster clauses (e.g., leaving to charity if all named beneficiaries predecease the testator).
When does the will speak from ?
- A will speaks from the date of death, unless otherwise stated
- Specific legacies (e.g., ‘my car’) apply to the item owned at execution
What is the class closing rule?
A class (e.g., ‘my grandchildren’) closes when the first member becomes entitled
Who pays taxes and expenses in a will?
- Inheritance Tax – Paid from the residuary estate unless stated otherwise
- Transfer Costs – Beneficiary bears costs unless the will states otherwise
- Mortgages/Charges – Default rule: the asset bears its own liabilities
What is an express survivorship clause?
Ensures a beneficiary must outlive the testator by a set period (e.g., 28 days) to inherit.
What happens if a child predeceases the testator?
s33 Wills Act 1837 applies: The gift passes to their issue unless stated otherwise.
What should be included when gifting to a charity?
- Full name, address, and registered number
- A fallback clause in case the charity ceases to exist
What are the conditions for incorporating a document into a will?
- The document must exist at execution
- The will must refer to it as an existing document
- The document must be clearly identified in the will
