Will Drafting Flashcards
Appointments - Example appointing solicitors
I appoint the persons who at the time of my death are the directors, partners or holders of any share in [] to be appointed as my trustees and executors of this will. I declare the express wish that no more than two shall prove my will
Appointments - Trustees
‘In my will the expression ‘my Trustees’ shall, where relevant, include my executors and the trustees for the time being of any trust arising under my will.
Appointments - Charging clause example
Any person who is acting as one of my executors or one of my Trustees in the course of a business or profession is entitled to charge, and be paid, reasonable remuneration for any services that the executor, Trustee or his or her firm provides.
Appointments - Guardians
If the testator or testatrix has infant children, they should include a clause in the will appointing guardians to look after the children after the death of both parents. E.g ‘If my wife [NAME] dies before me, I appoint as the guardian of any of my children who are under 18 at my death [NAME] and [NAME] both of [ADDRESS] jointly, or, if one of them dies before me, I appoint the one who is living at my death.
Non-residuary gifts - Pecuniary legacies
‘I give to my daughter, [NAME], £50,000’
Non-residuary gifts - House
‘I give my house [The Old Vicarage, [ADDRESS]] to [NAME] or such other property which is my principle residence at the date of my death (“the Property”)’.
Non-residuary gifts - Specific gifts - Problem with ademption
Need to word the clause in a different way - using general wording. E.g ‘my main residence at the date of my death’. E.g ‘my car at the date of my death’. For shares instead of saying ‘MY 100,000 shares in Rolls Royce Holdings plc’ remove the MY. Alternatively say ‘all my shares in Rolls Royce Holdings plc’
Non-residuary gifts - Receipt clause for minor beneficiaries
If my Executors obtain a receipt for this legacy from the parent or guardian of [NAME] whilst she is still a minor they have no further duties relating to the payment.
Non-residuary gifts - The beneficiary - Contingent gifts - Example
I give £10,000 to my trustees to hold on trust for my grandson, Oliver, until he attains the age of 21
Non-residuary gifts - To more than one person
Good to say jointly. E.g ‘I give £100,000 to [NAME] and [NAME], jointly or, if one of them dies before me, to the one who is living at my death.’
Non-residuary gifts - Discretionary trusts
E.g ‘on trust for such of my children and in such shares as my trustee shall select’
Burden of IHT - Which beneficiary bears the burden
The default position is that the IHT on the individual legacies is paid out of the residuary estate. If the client wants all IHT payable on non-residuary gifts to be paid from the estate except for specific gifts say that a gift is subject to IHT.
Burden of a charge
General rule is that the mortgage debt falls on the beneficiary who receives the charged property unless there is a contrary direction. Needs to state if the gift is free of the charge. E.g ‘free of mortgage’ and then it will be paid out of the residue.
Gift of the residue - Direction for the payment of debts and legacies
‘Subject to the payment of my debts, funeral and testamentary expenses and legacies, I give all my estate not otherwise disposed of to such of my brothers and sisters as may be living at my death and if more than one in equal shares.’
Gift of residue - Life interest
The life tenant receives the interest until they die. E.g ‘To pay the income to [my wife], [NAME], during her lifetime and then’
Gift of residue - Contingent trust of residue
I give all the rest of my estate not otherwise disposed of by my will to my executors and/or my Trustees upon trust to pay my debts, funeral and testamentary expenses and legacies and to hold the balance (‘my Residuary Estate’) on trust for such of my children as attain the age of 25 years and if more than one, in equal shares absolutely. If any child of mine dies before me or before attaining a vested interest, leaving children who shall attain the age of 25 years, those children shall take the share of the Trust Fund that their parent would have taken under this clause in equal shares absolutely.
Gift of residue - Avoiding partial intestacy - Example of longstop beneficiary clause
I give all the rest of my property after deducting debts, testamentary expenses and
legacies to my daughter Hannah Leghorn if she survives me by 28 days, but if she does not so survive me then to my grandson John James.
Survivorship clause - Specific example
I give £50,000 to my son, James, if he survives by 28 days, but if he does not so survive me, then to my sister Rose.
Attestation clause - Example
Signed by me [testator’s name]
in our joint presence and then by us in [his/hers]
