Will Drafting

Question 1

Structure

Answer 1

1) Opening
2) Revocation clause
3) Direction as to disposal of the body
4) Appointment of executors and/or trustees
5) Guardians
6) Non-residuary gifts including receipt clauses
7) Gift of residue
8) Survivorship clause
9) Administrative provisions (powers of executors)
10) Attestation clause

Question 2

Opening and revocation clause

Answer 2

E.g I [NAME] of [ADDRESS] declare that this is my last will and testament. I revoke all former wills, codicils and other testamentary dispositions made by me.
If the testator intends to marry in the near future, they should state that the will is made in expectation of that marriage and that they do not wish the marriage to revoke the will.

Question 3

Appointments - Example appointing solicitors

Answer 3

I appoint the partners at my death in the firm of [FIRM NAME] of [ADDRESS] as the executors and trustees of this will. However, I want no more than two of the partners to apply for a grant of probate of this will. The reference to [FIRM NAME] includes any firm that has succeeded to, or is carrying on the practice of, [FIRM NAME] at my death (including a firm that has been incorporated or formed a limited liability partnership).

Question 4

Appointments - Trustees

Answer 4

If there is an express trust of the estate. The testator should appoint persons to be trustees. E.g ‘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.

Question 5

Appointments - Charging provisions

Answer 5

A professional executor or trustee and trust corporations will, want to charge fees for acting. Wills often contain an express power for the executors/ trustees to charge. Otherwise the Trustee Act will come into play which allows for payment for professional trustees as long as the other trustees agree

Question 6

Appointments - Charging clause example

Answer 6

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.

Question 7

Appointments - Guardians

Answer 7

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.

Question 8

Non-residuary gifts - Pecuniary legacies

Answer 8

This is a gift of money e.g ‘I give to my daughter, [NAME], £50,000’

Question 9

Non-residuary gifts - Specific legacies

Answer 9

Specific gifts of specific assets which the testator owns.
Specific legacy = a gift of personalty
Specific devise = a gift of land

Question 10

Non-residuary gifts - Specific Devise Example

Answer 10

‘I give The Old Vicarage to Alison Peters’. There is an issue here with ademption. So it should be worded differently e.g ‘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”)’. Therefore the gift would not adeem if The Old Vicarage were sold before the testator died.

Question 11

Non-residuary gifts - Specific gifts - Problem with ademption

Answer 11

If the testator does not own the specific asset at death the gift fails (adeems). The beneficiary gets nothing unless the will expressly provides for substitution. This is a particular problem with legacies of shares in a named company or a legacy of ‘my house’ or ‘my car’ which might be replaced or sold before death. 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’

Question 12

Non-Residuary gifts - The beneficiary - When will a gift fail for uncertainty

Answer 12

If a beneficiary is not clearly identified in the will then the gift will fail for uncertainty. A will should accurately state the name and address of the beneficiary and their relationship to the testator e.g ‘I give to my sister, [NAME] of [ADDRESS] [GIFT]’

Question 13

Non-residuary gifts - The beneficiary - Contingent gifts

Answer 13

Where testators wish to benefit persons who may be minors or relatively young then they should consider whether they want to make outright (vested) or contingent gifts

Question 14

Non-residuary gifts - The beneficiary - Vested gift example

Answer 14

Imposes no conditions so the beneficiary will be immediately entitled to it. E.g ‘I give £10,000 to my grandson, Oliver’. If Oliver is over 18 years of age at his grandfather’s death, he receives his gift straight away. If he is under 18, the £10,000 will be held on trust for Oliver until his eighteenth birthday.

Question 15

Non-residuary gifts - The beneficiary - Vested gift - If the beneficiary is under 18

Answer 15

If the beneficiary is over 18 years of age at the testator’s death then they receive their gift straight away. If they are under 18, the gift will be held on trust for the beneficiary until their eighteenth birthday. Unless the will provides otherwise, his parents or guardians can give a good receipt and will hold as trustees for Oliver until his eighteenth birthday. If he dies under age 18, the money forms part of his estate.

Question 16

Non-residuary gifts - Receipt clause for minor beneficiaries

Answer 16

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.

Question 17

Non-residuary gifts - Receipt clause for Charity

Answer 17

The receipt of the treasurer or other proper officer for the time being of the Charity shall be a sufficient discharge to my Executors

Question 18

Non-residuary gifts - The beneficiary - Contingent gifts

Answer 18

Imposes conditions to be satisfied before the gift can vest. E.g requiring a beneficiary to reach a certain age. They will only be entitled to the gift if they reach that age or satisfy that contingency. The gift will be held on trust until they satisfy the contingency.

Question 19

Non-residuary gifts - The beneficiary - Contingent gifts - What happens if the beneficiary dies before satisfying the contingency

Answer 19

The beneficiaries estate is NOT entitled to the gift. It will therefore pass to the persons entitled in default or if none back to the testator’s estate

Question 20

Non-residuary gifts - The beneficiary - Contingent gifts - Example

Answer 20

I give £10,000 to my trustees to hold on trust for my grandson, Oliver, until he attains the age of 21

Question 21

Non-residuary gifts - To more than one person

Answer 21

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.’

Question 22

Non-residuary gifts - Gifts to charities

Answer 22

It is important to identify the charitable body accurately. The address and registered charity number needs to be included. E.g I give £10,000 to the charity, Samaritans, a registered charity in England and Wales (219432) of The Upper Mill, Kingston Road, Ewell KT17 2AF for its general charitable purposes absolutely. I declare that the receipt of the honorary treasurer or other proper officer of the said charity shall be a full and sufficient discharge to my executors and/or Trustees. If at my death the Charity has ceased to exist or has amalgamated with another charity or has changed its name my executors and/or Trustees shall pay it to the charitable organisation which they consider most nearly fulfils the objects of the Charity

Question 23

Non-residuary gifts - Discretionary trusts

Answer 23

Where the trustees select who, from a class of beneficiaries, is to benefit and how much each will receive.
E.g ‘on trust for such of my children and in such shares as my trustee shall select’

Question 24

Burden of IHT - Which beneficiary bears the burden

Answer 24

The default position is that the IHT on the individual legacies is paid out of the residuary estate. However the will can displace the general rule by exhibiting a contrary intention.
Either needs to state that the gift is ‘free of’ or ‘subject to’ tax.
ALTERNATIVELY if the client wants all IHT payable on non-residuary gifts to be paid from the estate except for specific gifts say this ‘My executors and/or Trustees must pay all IHT payable as a result of my death on any non-residuary gifts in this will from my estate, except when this will expressly states that a gift is subject to IHT.’

Question 25

Burden of costs

Answer 25

There may be costs associated with the packing or transport of a specific gift. Unless the will provides otherwise the beneficiary will bear these costs. Again needs to state if they are ‘free of’ or ‘subject to’ tax.

Question 26

Burden of a charge

Answer 26

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.

Question 27

Gift of the residue - Direction for the payment of debts and legacies

Answer 27

There should be an express direction for the payment of all debts, expenses and legacies to be made from the residue before it is distributed to the beneficiaries. E.g ‘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.’

Question 28

Gift of residue - Life interest

Answer 28

The life tenant receives the interest until they die. E.g ‘To pay the income to [my wife], [NAME], during her lifetime and then’

Question 29

Gift of residue - Contingent trust of residue

Answer 29

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.

Question 30

Gift of residue - Avoiding partial intestacy

Answer 30

If a gift of residue fails the property will pass under the intestacy rules. You need to include substantial gifts to cover the possibility of the primary gift failing. E.g express substitution of beneficiary’s children if they predecease the testator. Also good to consider a ‘longstop’ beneficiary to inherit all if the intended arrangements fail - this is usually a charity.

Question 31

Gift of residue - Avoiding partial intestacy - Example of longstop beneficiary clause

Answer 31

If the gifts declared in [Clauses 6.2] and [6.3] above fail then my executors and/or Trustees shall hold my Residuary Estate on trust for the charity, Samaritans, a registered charity in England and Wales (219432) of The Upper Mill, Kingston Road, Ewell KT17 2AF for its general charitable purposes absolutely. I declare that the receipt of the honorary treasurer or other proper officer of the said charity shall be a full and sufficient discharge to my Trustees. If at my death the Charity has ceased to exist or has amalgamated with another charity or has changed its name my Trustees shall pay it to the charitable organisation which they consider most nearly fulfils the objects of the Charity

Question 32

Gift of residue - To more than one person

Answer 32

E.g to the testator’s children. Wise to omit names and specific shares in the residue and refer only to any children the testator may have at the date of death. Using the phrase ‘for such of my children as survive me and if more than one in equal shares’.

Question 33

Survivorship clause - Specific example

Answer 33

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.

Question 34

Administrative provisions

Answer 34

It is usual to include clauses in wills extending or modifying some of the statutory powers given to PRs and trustees. Even where the statutory powers are adequate it is common to repeat them.

Question 35

Administrative provisions - Trustee power to make loans example

Answer 35

My Trustees shall have the power to make loans from my Residuary Estate on any terms that they consider appropriate (including being interest free and unsecured) to any person or persons having an interest or prospective interest in my Residuary Estate.

Question 36

Attestation clause - Example

Answer 36

Signed by me [testator’s name]

in our joint presence and then by us in [his/hers]