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Wills > Will Drafting > Flashcards

Will Drafting Flashcards

1
Q

What should a commencement clause do?

A
  • identify the testator (full name and address)
  • note any other names the testator may be known by
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2
Q

What does a revocation clause do?

A
  • it revokes all previous will/codicils
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3
Q

What if there is no revocation clause?

A

Then any previous testamentary writing will be impliedly revoked but only to the extent that it is inconsistent with or merely repeats the terms of the later Will

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4
Q

What is the effect of burial and funeral wishes in the Will?

A

The instructions are not legally binding but will be followed where possible

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5
Q

Who cannot be appointed as an executor? Who should not be appointed as an executor?

A
  • a minor or someone who lacks mental capacity cannot act
  • a bankrupt person should not be appointed as they may struggle to perform all tasks
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6
Q

How many executors can/should be appointed?

A
  • minimum of one but at least two is better practice
  • maximum of four can take grant of representation with power reserved to those who do not take the grant, to take grant if later vacancy arises
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7
Q

When will the appoint of spouse as executor become ineffective?

A

When testator later divorces them

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8
Q

Can you qualify the appointment of an executor?

A

Yes by time, location of assets or type of assets

Any such grant will also be qualified

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9
Q

How many trustees should there be at least be?

A

At lest two or a trust corporation

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10
Q

Can a law firm be appointed as executors?

A
  • if partnership, then all of the partners can be appointed individually but not partnership as it has no separate legal personality
  • If LLP, then can be appointed as it has separate legal personality
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11
Q

If a guardian is to be appointed what should be done?

A
  • testator should obtain consent from proposed guardians that they are willing to act
  • consider whether any financial provision is appropriate
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12
Q

If the Will is appointing trustees and executors, what will the drafter need to consider with regards to what they might need?

A

Drafter will need to make sure they have appropriate powers to ensure effective estate administration

If no express powers, then statutory default will apply

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13
Q

How do administration powers within a Will and statutory powers interact?

A

Express powers within a will override default powers to extent there is any discrepancy

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14
Q

What should the attestation clause detail?

A

States that will was executed in the presence of two or more witnesses who attest the execution so to meet execution requirements in s 9 WA

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15
Q

What are dispositive clauses in a Will?

A

The clauses by which the testator directs who is to inherit their assets, what each person should receive and on what terms

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16
Q

What is traditionally a legacy and a demise?

A

Legacy - gift of chattels or personalty (personal property)

Devise - normally used in relation to gifts or real property (land)

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17
Q

What are the four different types of legacies a testator can make?

A
  • specific
  • general
  • pecuniary
  • residuary
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18
Q

What are specific gifts?

A

Gifts of a particular item owned by decease at date of death

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19
Q

What should be done in drafting specific gifts?

A
  • should be drafted precisely so subject matter is clear and item can be identified, otherwise the clause may fail for uncertainty
  • alternative substitute gift should be considered in case the testator no longer owns asset on death
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20
Q

What happens if specific gift fails because testator no longer owns asset at time of death?

A

The gift deems (fails to take effect) and the beneficiary receives nothing

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21
Q

What are the specific rules in relation to making a gift of collections?

A
  • must be clearly identified
  • if division is required, Will should specify how agreement should be reached, time frame for doing so and how any failure to agree should be resolved
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22
Q

What will a gift of all my chattels include and exclude?

A
  • include vehicles, modes of transport and pets
  • exclude money or securities for money, items used solely or mainly business purposes, items owned solely as an investment, chattels already given away elsewhere in the Will
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23
Q

What should be done in relation to gifts of land?

A
  • property must be sufficiently identified - address and registered title number
  • should expressly state what happens if the property is no longer owned by the testator when they died
  • solicitor should check whether any third party interests will be affected
  • consider if there is mortgage on the property and what should be done with this
  • if gift to more than one person, terms of their joint ownership should be clear
24
Q

What is a general legacy?

A

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

25
Q

Why does a general legacy not normally fail?

A

Does not normally fail because PRs would have to buy the specified property if it was not part of the estate at death

26
Q

What is a demonstrative legacy? Will it ever fail?

A

Type of general legacy which the will directs should be paid out of a specified fund.

Such a gift will not fail if there are insufficient assets in the specified fund as beneficiary will receive what is left in the fund and have balance of legacy paid as a general legacy

27
Q

What are pecuniary gifts?

A

Gifts of money

28
Q

What is the residuary gift?

A

Gift of all of the testator’s property which has not already been disposed of under the will or any later codicil

29
Q

Why is it particularly important to draft the residue clause carefully?

A

As failure to do so could result in partial intestacy

30
Q

When should a residue trust generally be imposed?

A

Where:

  • a beneficiary is given a life interest in the residue
  • a discretionary trust of the residue is to be set up
  • the residue is given to more than one person
  • there are contingent or minor interests
31
Q

What happens if earlier gift in the Will fails?

A

Property will usually pass under residue instead so go to residue beneficiary

32
Q

What should be done to reduce risk of residue failing?

A
  • avoid giving separate parts of residue
  • create express substitution clauses in the event that original gift does not take effect and/or
  • use an ultimate gift over clause, where the testator specifies who their estate should pass to in the event of all other gifts failing
33
Q

When assessing what property the testator refers to in the Will, what date is the Will deemed to speak from?

A

Will is deemed to speak from date of testator’s death in respect of identifying subject matter of gift

34
Q

A Will is deemed to speak from date of testator’s death in respect of identifying subject matter of gift. How can a contrary intention be shown?

A

By using the word ‘my’, ‘now’ or ‘at present’ when describing a gift

Effect being that the date of execution of the Will is now relevant

35
Q

What is the rule in relation to collections and use of ‘my’?

A

If gift of collection which is capable of growing the Will speaks from date of death notwithstanding use of ‘my’ rather than date of execution

Such as collection of stamps, or shares in company

36
Q

What date is relevant when assessing people who are to inherit under the Will?

A

Date of execution

37
Q

What happens if testator refers to a class of beneficiaries in Will eg ‘my grandchildren’?

A

Unless contrary intention is shown, class closing rules will apply.

Class closes when the first beneficiary in the class obtains a vested interest

38
Q

What is the effect of the testator executing a codicil and the identification of beneficiaries?

A

Codicil republishes will so execution of codicil relevant date whereby beneficiaries should be identified

39
Q

What is the default position in relation to payment of IHT?

A

In absence of express provision, individual gifts are made free of tax and IHT is payable out of the residue as a general testamentary expense

40
Q

Who bears the burden in relation to cost of transfer and any expenses that have been incurred on behalf of asset?

A

Unless stated otherwise, specific beneficiaries bear the burden of:

  • cost of delivery of the item of property to them
  • expenses incurred since the date of death in preserving the item ensuring its upkeep
41
Q

If a property is subject to a charge eg mortgage on house, what happens to the charge?

A

The beneficiary will inherit the property subject to the charge unless stated otherwise

42
Q

What will not be enough to relieve asset of charge attached to it?

A

Clause stating that debts and expenses from residue of estate

Will need specific wording

43
Q

What is the effect of s 21 Administration of Justice Act 1982 and what will the courts consider in considering proper construction of Will?

A

Provision allows court to rule on meaning of Will or clause where it is unclear or ambiguous

Courts will consider the overriding principle of construction of wills which is the intention of testator should be given effect to in doing this

Does not allow courts to vary or contradict language used by testator

44
Q

Under s 21, when may extrinsic evidence be submitted to aid the court with construction?

A
  • if the will or any part of it is meaningless
  • if the language used in any part of it is ambiguous on the face of it
  • if the will is ambiguous in light of the surrounding circumstances
45
Q

What presumption arises where two people die and the exact order of death is uncertain?

A

Presumption that the eldest died first

46
Q

What happens for the purposes of IHT if the order of death is unknown?

A

Deaths treated as simultaneous and neither inherits from the other and the estates are taxed separately.

47
Q

What is a survivorship clause?

A

Clause that states that in order to take a particular gift the beneficiary must survive the testator by a specified period of time

48
Q

Who is and is not included in gift to children?

A

includes illegitimate, legitimated and adopted children but not stepchildren

49
Q

Who can give good receipt?

A

Anyone over age of 18

16 and 17 year olds if the will permits it

50
Q

What happens if a beneficiary dies before the testator?

A

Gift fails and either gift ends up in residue or partial intestacy

51
Q

What happens if there is a gift to issue who predeceases the testator?

A

S 33 Wills act means issues on children can be substituted so they receive the legacy in equal shares provided to contrary intention is express in will

Only applies to issue of testator

52
Q

What should be done in relation to gifts to charities or unincorporated associations?

A
  • organisation should exist and a full name and address (plus charity number) should be used to avoid doubt as to who is to benefit
  • provision should be made in case organisation changes name, merges or ceases to exist
  • provision should be made as to who can give valid receipt
53
Q

What happens if charitable gift fails?

A

Under cy-pres doctrine gift for general charitable purposes means gift can be given to different charity with similar purposes

54
Q

How can an unexecuted document be incorporated into a will?

A
  • document must exist when will is executed (or at time later codicil is made)
  • will must refer to document as being in existence at time of execution
  • document must clearly be identified in Will
55
Q

Will validly incorporated document referenced in will be made public with Will?

A

Yes

Wills (14 decks)

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