Weeks 2 and 8- Drafting a will

Question 1

There are 11 sections

List the order of sections in a normal will

Answer 1

1. Commencement
2. Revocation
3. Funeral
4. Appointment of executors and trustees
5. Appointment of guardians (legal guardian for child if parent dies- think Modern Family)
6. Specific gifts
7. General gifts
8. Pecuniary gifts
9. Residuary gift
10. Admin clauses
11. Date and Attestation

Gifts in that order as mirror statutory order in which PRs must dispose

Question 2

Give a standard commencement clause

Answer 2

I ROMAN KENNY-MANNING sometimes known as RO KOALA of ACTIVE AWAY LTD a tennis coach declare this to be my last will and testament

Question 3

Give a standard revocation clause and explain why one is needed

Answer 3

I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will

Ensures only one valid will exists at any one time. If there is more than one valid will, the later one impliedly revokes inconsistent parts of prev one.

Question 4

What is the effect of directions given in a will regarding burial/funeral (what happens to the body)?

Answer 4

Captain Fantastic - Not legally binding on PRs.

Question 5

Why should testator get the consent of anyone he is appointing as executor in advance of drafting the will?

Answer 5

Because the role of an executor is onerous. It can be complex, time-consuming, and emotionally taxing.

Question 6

A appoints his spouse, B, as his executor. They later divorce. Can B still act as executor of A’s will?

Answer 6

No - the appointment of a spouse/civil partner becomes ineffective if the testator later divorces/dissolves their civil partnership (s18A/C WA 1837).

Question 7

Give an appointment clause and explain why it is good practice to use this kind of clause

Answer 7

I APPOINT A and B (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 C to fill any vacancy thereby arising.

Ensures will has 2 executors (needed for wills involving dispositions to minors)

Question 8

Why would a legal professional often be appointed along with a family member as an executor?

Answer 8

Because the job of administering an estate can be complex, time-consuming, and emotionally exhuasting. A professional executor can provide experience, expertise and a neutral perspective that family members cannot offer.

Question 9

Which executors and trustees may charge for their services?

Answer 9

Professional trustees/executors (s.29 TA 2000) are entitled to charge, and be paid, reasonable remuneration for services that the Professional Trustee or their firm provides.

NB express charge payment power often included in appointment clause.

Question 10

In what order are gifts dealt with in a will?

Answer 10

Non-pecuinary gifts first
Then pecuinary gifts
Then residue

Question 11

What are 3 things to be careful of when drafting a specific gift

Answer 11

1) Subj matter must be clearly defined, otherwise void for uncertainty
2) If T does not **own item at the date of death, ** gift will fail
3) Draft a plan B if testator wants to ensure beneficiary gets ‘something’ in event of specific gift failing: eg “I give to C absolutely my fender guitar or such other guitar that I own at my death which I keep in my safe, or failing that £1000”

Question 12

What should be included in a gift of a collection to be divided as the beneficiaries see fit?

Answer 12

The will should specify:
* the collection (otherwise void for uncertainty)
* how agreement should be reached,
* a time frame for deciding on a division and
* state how any failure to agree within such time should be resolved

Eg: 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.

R

Question 13

Why is it important to draft a specific gift of chattels?

Answer 13

Because otherwise they just fall into the general residue to be sold and the proceeds of sale distributed with the rest of the residue

check if this is right?

Question 14

Give the statutory def of ‘personal chattels’ (s.55(1)(x) AEA 1925)

Answer 14

It means “tangible movable property” but excludes:
1) Money or securities for money
2) Business property: Property used by the intestate at their death solely or mainly for business
3) Investment property: Property held at the death of the intestate solely as an investment

Question 15

A owns a Bentley he bought solely as an investment. By his will, A wants B to receive the car, along with all of his personal chattels. Draft a clause which gives effect to A’s wishes.

Answer 15

I give to B absolutely all my personal chattels as defined by s.55(1)(x) AEA 1925 and also my any motor car belonging to me even though acquired and used wholly or partly for investment purposes

Question 16

What is the relationship between specific gifts and a general gift of chattels?

Answer 16

The specific gifts come first in a will. Therefore, a general clause should be drafted as disposing of ‘personal chattels’ which are not the subject matter of specific gifts.

eg: I give to [ ] absolutely such of my personal chattels as defined by s.55(1)(x) AEA 1925 **as are not hereby (i.e. in this will) or any codicil hereto (to this will) otherwise specifically disposed of. **

Question 17

If the deceased co-owned a property as joint tenants and wants the surviving tenant to have the property, what should be drafted in the will?

Answer 17

Nothing- the deceased’s share of the JT passes outside of succession estate under survivorship.

Question 18

How is a general gift different from a specific gift?

Answer 18

A general legacy is a gift of property which is not distinguished from property of a similar type
eg “a” rather than “my”.

*I GIVE to B a Babolat Pure Drive absolutely *

Most pecuniary gifts are general

Question 19

What is a demonstrative gift?

Answer 19

A demonstrative legacy is a type of general legacy (most often pecuniary in nature) which the will directs should be paid out of a specified fund.

Question 20

In a demonstrative gift, what happens if there are insufficient funds in the chosen source/source no longer exists?

Answer 20

The beneficiary is entitled to receive what is left in the chosen fund (if anything) and to have the balance of the legacy paid as a general legacy

Question 21

Why is it important to draft substitution clauses into gifts of residue?

Answer 21

Residue is often the largest (i.e. most money) gift and if primary gift fails, the risk is that it will pass under intestacy rules (so there will be a partial intestacy) and this might not be in accordance with testator’s intention.

Question 22

If a specific or general legacy fails, what happens?

Answer 22

It forms part of the residue

Question 23

As regards property (i.e. the subject matter of gifts), when does the will speak from as a general rule (s.24 WA)?

What words in a will might evince a contrary intention (i.e. for general rule not to apply)?

Answer 23

Unless a contrary intention is shown, the will speaks from the **date of the testator’s death **

A contrary intention can be demonstrated by the **use of words such as **‘my’ **(as you would see in a specific legacy), **‘now’, or ‘at present’ **when describing a gift. The effect of these words is that the will speaks from the date of execution.

The beneficiary is only entitled to receive that item, will not therefore receive any replacement asset that the testator did own at their death, or a cash alternative, unless this was expressly provided for.

NB importance of drafting plan B into specific legacy so gets something

Question 24

What does it mean to say ‘the will speaks from X date’?

Answer 24

This is the date on which property is to be ascertained.

Question 25

As regards collections, when does the will speak from as a general rule?

Answer 25

If there is a gift of a collection which is capable of growing, the will speaks from the date of death

Use of words ‘my’ has no effect

Question 26

As regards beneficiaries, when does the will speak from as a general rule?

Answer 26

The will is deemed to speak from the date of execution, unless the wording in the will shows a contrary intention.

The execution of a later codicil republishes the will it amends and under the general rule **people are identified with reference to the date of execution of the codicil. **

Question 27

Which part of an estate bears liability for IHT?

Answer 27

In the absence of any express provision, an individual gift in a will is made free of IHT.** IHT would be payable out of the residue **as a general testamentary expense.

Question 28

What obligations does a beneficiary of a specific legacy bear?

Answer 28

In the absence of any express provision, specific beneficiaries bear the burden of the:
(1) **cost of delivery **of the item of property to them
(2) expenses incurred since the date of death in preserving the item or ensuring its upkeep

Question 29

B inherits T’s house. What happens to the unpaid mortgage charge on the house (s.35 AEA)?

What could T have drafted in his will to change what happens?

Answer 29

Unless the will shows a contrary intention, the asset charged bears liability for payment. B will therefore inherit the house subject to the charge.

S.35 AEA can be specifically ousted.
* EG: ‘The mortgage charge on the house is to be redeemed out of the residue of the estate and B is to receive the house free of any mortgage charge’

NB a general direction to pay debts and expenses from residue don’t work

Question 30

What can a court do where the meaning of whole/part of a will is unclear?

Answer 30

S.21 AJA: Give an authoritative interpretation of the will, giving effect to testator’s intention according to the meaning of the words used in the will.

Extrinsic evidence can be adduced, but only for the purpose of helping to construe the actual meaning of the words used in the will itself.

Question 31

What is the general rule for what happens where a beneficiary pre-deceases the testator?

Answer 31

Gift lapses

• Pecuniary legacy lapses: Money goes to residuary estate.
• Gift of residuary estate lapses: Full or partial intestacy is created

Question 32

T (70) and B (69) both die in a car accident. It is uncertain who died first.

Did B inherit under T’s will? And what is the IHT position?

Answer 32

Yes- the commorientes rule applies which presumes that the eldest died first (s.184 LPA 1925) so B is deemed to have survived T.

For IHT purposes, neither person inherits from the other and the estates are taxed separately. Property which in fact passes from the first to die to the second to die is not taxed again in the second estate.

Question 33

Give a common survivorship clause

Answer 33

I give my Residuary Estate absolutely to my spouse if he survives me by more than 28 days

28 or 30 days is often used

Question 34

A gift to ‘children’ will not include whom?

Answer 34

Stepchildren (unless will expressly says otherwise or it is clear from the interpretation of the will that they were intended to be included)

Question 35

Define ‘class gift’

Answer 35

Where a gift is given to a group of beneficiaries who meet a general description

Question 36

What does it mean to say that a class ‘closes’?

What is the general rule regarding when a class closes?

Answer 36

A class ‘closes’ when the beneficiaries within the class are identified and no one born subsequently can qualify i.e. when the door closes.

General rule: Class closes **when any one member of the class first becomes entitled in possession. **

Eg: I give £300 to be shared equally between my grandchildren who reach the age of 21. When the first grandchild reaches 21 the class of ‘grandchildren’ would close. **Grandchildren born after that do not get let into the class. **

Question 37

Give an eg of the class closing rule applying to a contingent and a non-contingent gift

Answer 37

Contingent: I give £300 to be shared equally between my grandchildren who reach the age of 21. When the first grandchild reaches 21 the class of ‘grandchildren’ would close. **Grandchildren born after that do not get let into the class. **

Non-contingent: Class closes on the date of death, provided there is at least one person who satisfies the definition e.g. one grandchild in whom the gift can vest.

Question 38

What is the difference between a contingent and vested interest?

Question 39

What happens if a gift to T’s issue predeceases and there is no substitution clause?

Answer 39

The gift takes effect as a gift **to the issue of the deceased beneficiary alive at the date of the testator’s death **(s.33 WA), unless contrary intention is expressed in the will.

If there are multiple issue of deceased beneficiary, then gift is shared equally between them.

EG: T’s will contains a gift to T’s child (A). A pre-deceases T, leaving children of their own (B and C) who are alive at T’s death. S.33 means B and C take the share A would have taken had A survived T (1/2 of A’s share would pass to each of B and C).

Question 40

Why is it good practice to draft in an express substitution clause even where s.33 WA would achieve the same desired result?

Answer 40

Clarity reasons mainly. Specifically, where s33 applies and the original gift is contingent (e.g. to a beneficiary at 21) it may be unclear whether s33 imposes a similar contingency on the substitution. It is therefore preferable to provide expressly what the terms of any substitutional gift should be.

Question 41

What should you ensure is drafted into a gift to a charity?

Answer 41

I GIVE to X charity (registered charity No.) absolutely £6,000 for its general purposes provided that:
* if at the date of my death the charity does not exist or is subject to a winding up order my Executors shall pay the legacy to such another charitable body having the same or similar objects
* the receipt of the treasurer or other appropriate officer for the time being of the charity (or of any substituted charity) shall be a good discharge to my Trustees

Question 42

What is the cy-pres doctrine?

Answer 42

A charitable gift stated to be for general charitable purposes results in the application of the cy-pres doctrine - under s.62 Charities Act 2011 the gift can be given to a different charity with a similar purpose where the original gift cannot be given effect.

This is often expressly drafted into the charitable gift in a will.