WAE weak areas (SQE 2)

Question 1

What is the application process when applying for a grant of representation?

Answer 1

1) Online or paper application - paper: PA1A where no will, PA1P where will (whether or not executors appointed-e.g. NCPR 20 + probate)
On app
2) confirm identity of deceased + applicants
3) Justify grant requested (e.g. NCPR 20) + entitlement to act as PR (will as evidence, or clearing off under NCPR 20 + 22, state whether minor interests (+ so 2 admins needed), state familial relationship if app under NCPR 22
3) Provide info about value of estate and IHT status (if IHT 400 completed- confirm that IHT 400 was completed and IHT paid, HMRC will provide confirmation to Probate Registry via IHT 421. If excepted - include values of taxable estate)
4) Complete a legal statement (formally confirm contents are true and sign)

Question 2

What else should be submitted alongside application for grant of representation?

Answer 2

1) Fee (no fee for estates worth <£5000)
2) Original will submitted (+codicils)
3) Form of renunciation (if renouncing)
4) IHT forms (e.g. IHT 421)
5) Details of any power of attorney (form PA11 will be submitted alongside)

Question 3

IPFDA

(1) Can the time limit be extended?
(2) Which court?
(3) Two stage test?
(4) How does the court decide what award to give?

Answer 3

1. Court has discretion to extend time, taking into account circumstances, whether negotiations already commenced during time limit etc
2. HC or CC. If HC then Family Division (if spouse/civil p/cohabitee), other = Chancery Division
3. (1) Did the deceased fail to make reasonable financial provision for the applicant?
   (objective test - consider surviving spouse/maintenance standard. Will have regard to financial resources needs of applicant, other beneficiaries, size of estate, physical or mental disability of applicant, obligations towards applicants or beneficiaries, any other matter)
   (2) If so, what award should the court make?
4. (1) Quantum: how much should app receive?
   (2) Form of award: what form should the award take?
   -can include periodical payments, lump sum, transfer of property, variation of marriage settlements, variation of trusts etc

Question 4

What is the test in Banks v Goodfellow?

Answer 4

Common law test for testamentary capacity

Testator must:
-Understand nature of act and its effects
-Appreciate extent of property of which they are disposing
-Understand and appreciate moral claims which they ought to give effect to and have no disorder of mind

Question 5

When is it best practice for a medical practitioner to assess person making will?

Answer 5

If elderly or seriously ill

Question 6

S9 Wills Act? (sig and witnesses)

Answer 6

Writing and signed by testator

Made or acknowledge in presence of 2 or more witnesses present at same time
Each witness either attests and signs will, or
acknowledges signature
in presence of testator (but doesn’t have to be in presence of other witness)

Question 7

What are the 4 main introductory clauses which need to be included in will?

If professional executor, what will affect last point?

Guardians?

Answer 7

Commencement: identify testator - state full name (and aliases) and address (and sometimes occupation) - ‘…declare this to be my last will and testament’

Revocation: ‘I hereby revoke all former wills and testamentary dispositions and declare this to be my last will’

Burial and funeral wishes: ‘I wish for my body to be …’

appointment of executors: ‘I appoint [] and [] (hereinafter called “my Trustees”) jointly to be the executors and trustees of my will but if either of them shall be unable or unwilling to act I appoint [] to fill any vacancy thereby arriving’

professional executor: Any Professional Trustee is entitled to charge, and be paid, reasonable remuneration for services that the Professional Trustee or their firm provides

Guardians: I APPOINT [ ] and [ ] jointly to be the guardians of any of my children who have not attained the age of 18 at the death of the survivor of myself and my civil partner [ ]

Question 8

How to draft a

specific gift
collections
chattels
general legacies
demonstrative gifts
pecuniary gifts

Answer 8

‘I give my car that I own at the date of my will’ (to stop it from adeeming if no longer owned)

‘I give to my grandchildren living at my death absolutely in equal shares all my household furniture to be divided among them as they shall agree within 6 months of my death but in default of which a division shall be made by my Executors in their absolute discretion which shall be final and binding on all my grandchildren.’

I give to [ ] absolutely all my personal chattels as defined by section 55(1)(x) of the Administration of Estates Act 1925

I GIVE to [ ] a Hasselblad Lunar camera free of tax and costs of transfer absolutely

I GIVE to [ ] the sum of five hundred pounds (£500) to be paid from my Rochdale Building Society Account absolutely

I GIVE to [ ] the sum of five hundred pounds (£500) free of tax and absolutely

Question 9

How to draft residuary gift?

Answer 9

I GIVE all the assets I can dispose of by will subject to the payment of my debts and funeral and testamentary expenses and all legacies given hereby or by an codicil hereto (‘my Residuary Estate’) unto …

Question 10

What is the commorientes rule?

Answer 10

If two death occur in short period of time where exact order is uncertain, eldest deemed to die first

Question 11

What can be done if the will or clause within it is unclear or ambiguous?

Answer 11

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.

Question 12

What are the 9 trustee powers?

Answer 12

Power to sell, charge or lease
Power to appropriate (specific beneficiary must not be prejudiced, consent of recipient beneficiary required, value of asset must be considered at date of transfer/appropriation)
Power to insure
Power to invest (land in the UK, considered standard investment criteria and advice)
Power to charge for services (professional PRs claim reasonable remuneration, providing not acting alone and co-PR give written consent. Lay PR or professional PR acting alone needs to be given express power in will)
Reimbursement for PR expenses (expenses properly incurred e.g. travel)
Power to delegate (except how assets distributed, whether fees or costs are payable from income or capital, appointment of trustees. Delegation - do so in writing to agent , provide them with written policy statement which agent must agree with)
Power to appoint trustees (gifts to minors) - within this power to accept receipt from parent on behalf of minor
Power to run a business

Question 13

Ways PR can gain protection from claims? (9 different elements)

Answer 13

1. Court guidance (expensive and time consuming - estate admin by court or advice on specific matter)
   2.s48 Administration of Justice Act 1985 - distribute in accordance with written legal opinion
2. s27 TA 1925 - unknown beneficiaries (notice in London Gazette, a newspaper circulating in area - 2 months. Only protects PRs and only against unknown bs)
3. Benjamin Order - protection for known but missing bs. Before awarded must make: full enquiries to attempt to establish true position, and demonstrate no reasonable prospect of knowing true position without disproportionate expense
4. Presumption of Death Act 2013 - confirm presumed death for person not known to have been alive for 7 yrs or more
5. insurance
6. Indemnity (from beneficiaries)
7. Payment to court
8. Exoneration by court (PR acted reasonably and honestly, and ought fairly to be excused)

Question 14

What are the 4 preliminary steps needed to be taken after death by PR?

Answer 14

1. Register death (family or PRs) and get death certificate (so can be sent to institutions to release assets)
2. Secure estate assets (keep them safe)
3. Locate will/codicil (original)
4. Compile schedule of assets and liabilities (and calculate IHT due)

Question 15

When can an executor not renounce?

Answer 15

If they have intermeddle - ‘obtaining, receiving or holding assets’. Paying debts, selling assets, disposing of personal property

Question 16

What does NCPR 20 refer to? NCPR 22?

Answer 16

Letters of Admin with will
Letters of Admin without will

Question 17

What is the chattel exemption regarding CGT?

Answer 17

Gain made on tangible moveable asset is exempt from CGT is disposal is for a consideration of £6000 or less

Question 18

When are two administrators required?

Answer 18

Minor or life interests (any part of estate held under life interest trust)

Question 19

What are the 4 different types of affidavit and when would they be used?

Answer 19

Affidavit of due execution - where PR believes will to be valid but it not clear execution requirements in s9 been complied with (affidavit submitted with will confirming will executed in accordance with formalities required by one of the witnesses)
OR
Where date is missing, incomplete, more than date - confirm correct date

Affidavit of knowledge and approval by one of the witnesses (where presumption of knowledge is not presumed and no attestation clause)

Affidavit of plight and condition (already covered in other flashcards)

Affidavit (not specified) where original will destroyed without intention to revoke (already covered in other flashcards)

Question 20

What order are legacies paid?

Answer 20

Specific, general, residuary

Question 21

What can be placed in a will to allow minor beneficiaries to give good receipt? Who does it apply to?

Answer 21

Express clause in will which gives PRs power to accept receipt from a minor aged 16 or 17 is enforceable

Question 22

What are the estate accounts?

Who must they be signed by?

Format?

Answer 22

Record of the estate assets and how these have been administered - PRs have a duty to keep account of these

Should be signed/approved by both PRs and residuary beneficiaries (date signed = end of admin)

No set format but usually have 3 sections:
-capital account (estate assets and liabilities (IHT, pecuniary/specific legacies, solicitor’s fees) at death, what has happened to each item (sold/transferred to b), show balance available for distribution to residuary bs)
-Income account (income received in relation to estate assets and how this was spent, income expenses deducted as liabilities, show balance available for distribution to residuary bs)
-Distribution account (residuary bs entitlement - will show interim distributions and final balance due to be distributed)

Question 23

What happens if they are loans which acquire, maintain or enhance assets that qualify for BPR (or APR)?

Answer 23

The loan must be subtracted off the value of the asset (the remaining sum will qualify for BPR at that value)

e.g. Shares worth £100,000 (remaining outstanding loan of £25,000 used to buy shares)

BPR at 100% = 100,000 - 25,000 = 75,000 so BPR = £75,000

Question 24

GROBs

What are the 2 situations a lifetime gift will be treated as a GROB?
What is the relevant period?

Answer 24

1. Donee does not assume ‘bona fide possession’ of property at or before start of relevant period
2. Any time during relevant period - donor must be virtually excluded from property (e.g. doesn’t include overnight stays)
   Relevant period = 7 yrs before death but can be caught many years after gift if donor reacquires interest in property

Question 25

GROBs
What is effect of reserving benefit?

CGT consequences?

Answer 25

treated as part of estate for IHT purposes if GROB subsists (valued at date of donor’s death)
If GROB ceased - treated as a PET when reservation ceased

CGT - donee treated as donee’s property on gift date (will have to pay increase from that date if they sell later) - no free uplift on death

Question 26

When can a gift to you as a solicitor in the will be acceptable? Who is included in this?

What is considered significant?

Answer 26

To avoid own interest conflict, they must take independent legal advice if a significant gift to you or a member of your family, or a member of your firm of their family (otherwise should refuse to act)

Significant = more than 1% of net estate

Question 27

Summary of when amendments are valid and not valid?

Answer 27

Valid:
-made before execution of will/codicil
-obliterations with intent to revoke (presumed)
-completion of blank space
-attested alterations
-subsequently confirmed by re-execution or codicil with reference to alteration

Not given effect to:
-After execution of will/codicil
-Crossed through where original gift can still be seen (presumed after)
-Obliteration with conditional intent to revoke (provided extrinsic evidence can see original gift)
-Obliterations without intent to revoke
-unattested alterations

Question 28

How should a codicil be executed? Formalities?

Rules?

What can you do with it?

Answer 28

Same as a will
Testamentary capacity
knowledge and
approval (and of will)

A witness to the codicil cannot benefit under the original will or the codicil

Create new provisions in will
Edit existing provisions (e.g. sums)
Revoke provisions in will

Question 29

When can a will be revived by a codicil? When can it not?

Answer 29

Revived if revoked previously as long as testator’s intention

Cannot be revived if original will destroyed

Question 30

What is a mutual will? Mirror will?

Answer 30

Mutual will: where one testator agrees with another testator to make a will on terms agreed between them - cannot amend without consent of the other

Mirror: Wills of a couple which mirror each other - survivor of couple is free to revoke their will at any time prior to death of either

Question 31

How can marriage/cp not revoke a will (and any codicils)?

Answer 31

Draft the will in contemplation of marriage/cp

Must name future spouse/cp and identify the intended ceremony
Expressly state whether or not testator intends will to be revoked by marriage/cp
(cannot name hypothetical marriage)

Question 32

What are the specific rules in relation to power to appropriate and power to delegate?

Answer 32

Power to appropriate (specific beneficiary must not be prejudiced, consent of recipient beneficiary required, value of asset must be considered at date of transfer/appropriation)

Power to delegate (except how assets distributed, whether fees or costs are payable from income or capital, appointment of trustees. Delegation - do so in writing to agent , provide them with written policy statement which agent must agree with)

Question 33

Draft an attestation clause where the testator is blind

Answer 33

Signed by A in the presence of both of us, then by us in the testator’s presence after this document had been read over by [solicitor’s name] to the testator when the testator seemed thoroughly to understand and approve the contents.

Question 34

Draft an attestation clause where the testator is unable to read English

Answer 34

b) Signed by A (who understands French but cannot read English) in the presence of both of us and then by us in A’s presence after the will had been read aloud to A in English and accurately translated by B who understands English and French in our presence when A seemed thoroughly to understand and approve the contents.

Question 35

Draft an attestation clause where the testator is physically unable to sign

Answer 35

c) Signed by A in B’s name and on behalf of B (who is physically incapable of signing), in the presence of both of us and at B’s direction, and then by us in their presence, when the testator seemed thoroughly to understand and approve the contents.

Question 36

Draft a clause which appoints an executor/executrix with a provision of appointing someone else if they are unable to act

Answer 36

I appoint my daughter/son/wife [NAME] of [address] (doesn’t need to be full address if already mentioned) to be the only executor and trustee of this will. If my daughter/son/wife dies before, refuses to act or is unable to act, or her appointment does not take effect for any other reason, I appoint my son/wife/daughter [NAME] of [address] in substitution

Question 37

Draft a clause where money is given to charity but if it doesn’t exist at death then will go somewhere else

Answer 37

I give £5000 (five thousand pounds) to [CHARITY NAME], registered charity number [number] of [address].

If, at my death, the charity name in Clause X (Original Charity) no longer exists or is being wound up, my Trustees must pay the amount specified in clause 4 as being payable to the Original Charity to another charity that has objects similar to the Original Charity

Question 38

Give info on knowledge and approval

Answer 38

Knowledge and approval are presumed if the testator has testamentary capacity

If there is evidence which rebuts this, then the burden shifts to those seeking to enforce the will to demonstrate it was present

No presumption of knowledge and approval:
-Blind
-Signed by someone on behalf of testator
-Suspicious circumstances (e.g. prepared by key beneficiary)

Question 39

How do you draft a will/codicil execution section at end?

Answer 39

Dated…
Signed by [TESTATOR] in the presence of both of us and then by us in his/her presence
[sig of testator to the right of above]

“First witness’s signature:
[signature]
Full name:
[NAME IN CAPITALS]
Address:
…
Occupation:
…
“
Same for second witness