WE 2 - General Flashcards
What are the legal requirement of a testator to make a valid will
Testator must be:
-Over 18, married minor or in military service
Have:
- Testamentary Capacity
- Knowledge and approval
- Formal requirements met
What is required for testamentary capacity?
- 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)
When must a testator have testamentary capacity?
- 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.
What is the golden rule in respect of testamentary capacity?
- If in doubt, get a medical opinion.
If a person wishes to challenge a will on grounds of capacity, what must they do
- Capacity is presumed, therefore,
- Provide evidence
Can a person who lacks capacity still make a will?
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.
If the testator had testamentary capacity, is knowledge and approval presumed generally?
Yes
When will there be no presumption of knowledge and approval?
- blind and illiterate
- signed by someone else
- suspicious circumstances
What happens if part of the will was subject to undue influence?
- 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.
What is undue influence?
- Testator coerced into making a will, or including particular terms, agaisnst their judgement and contrary to their true intention.
- Undue influence goes beyond persuasion.
What considerations are taken into account when considering undue influence?
- 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
What are the legal requirements of a Will?
- 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)
What is an attestation clause?
Describes the circumstances under which the will was executed.
There is no legal obligation to include one.
What if the will contains gifts to an attestor?
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.
What if the will contains gifts to a Spouse of an attestor?
If a spouse or beneficiary is an attestator they cannot inherit
Are there any restrictions on who can be appointed as executors.
- A minor, or someone who lacks mental capacity cannot act
How many executors must there be?
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.
What happens is a spouse is executor but they divorce the deceased after the will was made?
The appointment will become ineffective.
How many trustees are required to act?
At least two
Can executors charge for their time?
Only professional executors and trustees may charge for their time.
Got up to Will drafting: non-dispositive clauses
What happens if a testator dies with more than one will without a revocation clause?
The later will revoke the earlier will but only to the extent that it is inconsistent
Are Burial & Funeral wishes binding on the PRs?
No
What is the role of the PR
- 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
What happens if the will gifts a specific item which the testator no longer owns at death?
The gift adeems (fails to take effect) and the beneficiary receives nothing. Risk is greatest where the will states “my” rather than “a”.
What happens if the will gifts a specific item and its not clear what that item is?
The gift may fail for uncertainty. Best to include an alternative.
What happens to property held as joint tenants
This property passes outside of the succession estate to the other party.
Are assets held as tenants in common included within the succession estate?
Yes, an individual will own a share of an asset held as tenants in common
What is a general legacy?
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.
Demonstrative Gifts - Will a pecuniary gift fail if it is stated to be made from a specific bank account that has since closed?
No, the gift will be paid as a general legacy
What are Residuary legacy?
A Gift out of the estate which has not already been disposed under the will or later codicil
When gifting the residuary, why is the phrase “and if more than one in equal shares” used?
To prevent a partial intestacy if one of the beneficiaries should predecease the testator.
Under the general rule, when does the will speak from?
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.
What effect does “my” have on a collection that is capable of growing when considering when the will speaks from?
The collection will those items included at the date of death notwithstanding the use of “my”.
When does the will speak from in terms of people?
The date of execution NOT the date of death.
In the absence of any express provision, is an individual gift made free of IHT?
Yes, IHT is generally taken out of the residue.
What expenses do beneficiaries bear in relation to a gift unless specifically stated otherwise?
- Cost of delivery.
- Expenses of upkeep/preservation from date of death.
What is the general rule that applies to property subject to a secured debt / charge?
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
What if the meaning of a will is ambiguous
- The court can provide a ruling.
- Extrinsic evidence can be provided
If a will leaves a gift to a class of beneficiaries, when does the ‘class close’
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.
What does a Vested gift mean? What about minors?
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.
What does a contingent gift mean?
Where a beneficiary has to satisfy a condition before they inherit e.g. reach a certain age.
What happens if the beneficiary dies before the testator?
The gift to them will fail
What happens if the beneficiary is the testators own issue and dies before the testator?
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.
What happens if a charitable gift is given with a general charitable purpose but the charity no longer exists at the date of death?
The cy-pres docterine applies and the gift can be given to a different charity with a similar purpose.
What happens if two people die and its not known who died first?
Treated as both dying at the same time - neither inherits from the other
