WE 2 - General

Question 1

What are the legal requirement of a testator to make a valid will

Answer 1

Testator must be:
-Over 18, married minor or in military service
Have:
- Testamentary Capacity
- Knowledge and approval
- Formal requirements met

Question 2

What is required for testamentary capacity?

Answer 2

• what they’re doing
• what they’re disposing of
• Understand moral claims
• Have no disorder of the mind that prevents their sense of right or prevents the excise of their natural faculties (testator may be insane and still have testamentary capacity provided the delusion is unconnected with and has no effect on the terms of the will)

Question 3

When must a testator have testamentary capacity?

Answer 3

• At the time the will is executed.

However will still be valid if:
- Had capacity at the time they gave instruction,
- The will was prepared in accordance to those instructions,
- At the time of the execution the testator understood that they were signing a will for which they had previously given instruction.

Question 4

What is the golden rule in respect of testamentary capacity?

Answer 4

• If in doubt, get a medical opinion.

Question 5

If a person wishes to challenge a will on grounds of capacity, what must they do

Answer 5

• Capacity is presumed, therefore,
• Provide evidence

Question 6

Can a person who lacks capacity still make a will?

Answer 6

Yes - the court can authorise the execution of a will if it is persuaded that:

• there are grounds to diverge from the existing testamentary position and
• it is in the best interests of the person to do so.

Question 7

If the testator had testamentary capacity, is knowledge and approval presumed generally?

Answer 7

Yes

Question 8

When will there be no presumption of knowledge and approval?

Answer 8

• blind and illiterate
• signed by someone else
• suspicious circumstances

Question 9

What happens if part of the will was subject to undue influence?

Answer 9

• That part is invalid, the remainder may be given effect to provided that the omissions do not upset the whole tenor of what remains. But the court cannot add or substitute words.

Question 10

What is undue influence?

Answer 10

• Testator coerced into making a will, or including particular terms, agaisnst their judgement and contrary to their true intention.
• Undue influence goes beyond persuasion.

Question 11

What considerations are taken into account when considering undue influence?

Answer 11

• no presumption of undue influence.
• Burden of proof lies with the person asserting and the court requires evidence.
• physical and mental strength of the testator
• Fairness is not relevant

Question 12

What are the legal requirements of a Will?

Answer 12

• in writing and
• signed by the testator, or by some other person in his presence and by his direction.
• testator intended to give effect to the will; and
• the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and
• each witness attests and signs the will; or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness)

Question 13

What is an attestation clause?

Answer 13

Describes the circumstances under which the will was executed.

There is no legal obligation to include one.

Question 14

What if the will contains gifts to an attestor?

Answer 14

The gifts will be void under s.15.

BUT: if there are two other witnesses who are not beneficiaries to the Will or Codicil, the effect of s.15 can be disregarded.

Question 15

What if the will contains gifts to a Spouse of an attestor?

Answer 15

If a spouse or beneficiary is an attestator they cannot inherit

Question 16

Are there any restrictions on who can be appointed as executors.

Answer 16

• A minor, or someone who lacks mental capacity cannot act

Question 17

How many executors must there be?

Answer 17

At least 1 and a maximum of 4 can apply for grant of representation. If more than 4 apply then power is ‘reserved’ to those who do not apply initially to apply later.

Question 18

What happens is a spouse is executor but they divorce the deceased after the will was made?

Answer 18

The appointment will become ineffective.

Question 19

How many trustees are required to act?

Answer 19

At least two

Question 20

Can executors charge for their time?

Answer 20

Only professional executors and trustees may charge for their time.

Question 21

Got up to Will drafting: non-dispositive clauses

Question 22

What happens if a testator dies with more than one will without a revocation clause?

Answer 22

The later will revoke the earlier will but only to the extent that it is inconsistent

Question 23

Are Burial & Funeral wishes binding on the PRs?

Answer 23

No

Question 24

What is the role of the PR

Answer 24

• collect in the deceased’s assets
• administer the estate
• Pay the deceased’s debts, administration costs and expenses
• Distribute the assets to the correct beneficiaries

Question 25

What happens if the will gifts a specific item which the testator no longer owns at death?

Answer 25

The gift adeems (fails to take effect) and the beneficiary receives nothing. Risk is greatest where the will states “my” rather than “a”.

Question 26

What happens if the will gifts a specific item and its not clear what that item is?

Answer 26

The gift may fail for uncertainty. Best to include an alternative.

Question 27

What happens to property held as joint tenants

Answer 27

This property passes outside of the succession estate to the other party.

Question 28

Are assets held as tenants in common included within the succession estate?

Answer 28

Yes, an individual will own a share of an asset held as tenants in common

Question 29

What is a general legacy?

Answer 29

A gift of property which is not distinguished from property of a similar type. e.g.

• I give ‘a’ Camera = GENERAL
• I give ‘my’ Camera = SPECIFIC

A general legacy does not normally fail.

Question 30

Demonstrative Gifts - Will a pecuniary gift fail if it is stated to be made from a specific bank account that has since closed?

Answer 30

No, the gift will be paid as a general legacy

Question 31

What are Residuary legacy?

Answer 31

A Gift out of the estate which has not already been disposed under the will or later codicil

Question 32

When gifting the residuary, why is the phrase “and if more than one in equal shares” used?

Answer 32

To prevent a partial intestacy if one of the beneficiaries should predecease the testator.

Question 33

Under the general rule, when does the will speak from?

Answer 33

Unless a contrary intention is shown, the date of death in respect of identifying the subject matter of a gift.

Words like “my” demonstrate a contrary intention, so the gift will fail if the car owned at the date of the will is not owned at the date of death.

Question 34

What effect does “my” have on a collection that is capable of growing when considering when the will speaks from?

Answer 34

The collection will those items included at the date of death notwithstanding the use of “my”.

Question 35

When does the will speak from in terms of people?

Answer 35

The date of execution NOT the date of death.

Question 36

In the absence of any express provision, is an individual gift made free of IHT?

Answer 36

Yes, IHT is generally taken out of the residue.

Question 37

What expenses do beneficiaries bear in relation to a gift unless specifically stated otherwise?

Answer 37

• Cost of delivery.
• Expenses of upkeep/preservation from date of death.

Question 38

What is the general rule that applies to property subject to a secured debt / charge?

Answer 38

The charge passes with the asset under s.35.

NOTE: a general direction in the will to pay debts and expenses from the residue will no override s.35

Question 39

What if the meaning of a will is ambiguous

Answer 39

• The court can provide a ruling.
• Extrinsic evidence can be provided

Question 40

If a will leaves a gift to a class of beneficiaries, when does the ‘class close’

Answer 40

When any member of the class first becomes entitled in possession.

For example “when my children reach 21” would close when the first child reaches 21 after death.

Question 41

What does a Vested gift mean? What about minors?

Answer 41

A gift given outright and absolutely with no conditions.

Note: vested gifts to minors still vest even if they are held in trust. This means the gift will be within the minor’s estate.

Question 42

What does a contingent gift mean?

Answer 42

Where a beneficiary has to satisfy a condition before they inherit e.g. reach a certain age.

Question 43

What happens if the beneficiary dies before the testator?

Answer 43

The gift to them will fail

Question 44

What happens if the beneficiary is the testators own issue and dies before the testator?

Answer 44

Section 33 Wills Act states that the gift will be taken as given to the beneficiaries issue in equal shares unless the a contrary intention appears in the will.

Note: Only applies to testators issue.

Question 45

What happens if a charitable gift is given with a general charitable purpose but the charity no longer exists at the date of death?

Answer 45

The cy-pres docterine applies and the gift can be given to a different charity with a similar purpose.

Question 46

What happens if two people die and its not known who died first?

Answer 46

Treated as both dying at the same time - neither inherits from the other