Will drafting Flashcards
What is included in the commencement section of the will?
- T’s name and address (and any other name referred to)
- If the testator owns assets in another name, the grant of representation must refer to each possible alias.
What non-dispositive clauses may be included?
- commencement
- revocation
- burial and funerla wishes
- appointment of executors/guardians
What is the minimum number of executors required in a will?
1 executor - up to 4 can apply for the grant of representation.
What happens to the appointment of a spouse as executor if the testator later divorces them?
Becomes ineffective
Can a partnership be appointed as executor in a will?
No - A partnership does not have a separate legal identity; however, partners at the date of death can be appointed.
What should be avoided when appointing personal partners as executors?
Personal partner appointments
Can professional executors be appointed and compensated?
Yes
What is required when appointing guardians for children in a will?
Guardians must be willing to act
Their position usually only takes effect after the death of the remaining parent
What administrative powers does an executor have?
To administer the estate
Executors manage the distribution of the estate according to the will.
What is the role of a trustee in relation to a will?
Management of any trusts following estate administration
Trustees ensure that trusts are managed according to the terms set out in the will.
What happens if a will contains no express administrative powers?
Only statutory and common law powers apply
What is often included in the administrative clauses of the will?
incorporate a standard list produced by the Society of Trusts and Estates Practitioners (STEP)
Where does the date of execution usually appear in a will?
At the end
The date should not appear at the start or end; attestation is typically found at the end.
What is attestation in the context of a will?
Describes circumstances of signing
It is important for verifying the authenticity of the will.
Can a will be admitted to probate without a date of execution?
No, unless the date can be proven
What are Dispositive Clauses?
Dispositive Clauses refer to the provisions in a will that dictate how a person’s assets are to be distributed after their death.
What is a Legacy?
A Legacy is a gift of chattels or personalty.
What is a Devise?
A Devise is a gift of real property or land.
What are Specific Gifts?
Specific Gifts are gifts out of assets in the estate
What happens to a specific gift if the testator does not own the item at death?
If the testator does not own the item at death, the gift adeems and no longer exists.
What are Collections in the context of gifts?
Collections refer to a gift of multiple items rather than a single item, which must be identified with certainty.
What is Personalty?
Personalty is any property which is not land, including money, interests under a trust, and debts owed to the deceased.
How are Chattels defined?
Chattels are defined under statute to avoid gifts failing for uncertainty and include vehicles, modes of transport, and pets.
What is excluded from Chattels?
- Money or securities for money
- Items used solely or mainly for business purposes
- Items used solely for investment
Can the statutory definition of chattels be altered?
Yes, gifts of chattels may be altered to include or exclude items.
What is the order of specific gifts in a will?
Specific gifts of items appear before the gift of chattels in a will to cover items that have not already been given away.
What is required for Specific Gifts of Land?
Specific Gifts of Land require the property to be identifiable with a full address and registered title number.
What if the testator has no particular beneficiary in mind for land?
If the testator has no particular beneficiary in mind, no specific provision within the will is required.
The property will be sold as part of the administration
What should be included in alternative arrangements for property?
Alternative arrangements should be given in case the property is no longer owned by the testator.
What should a solicitor check regarding property?
A solicitor should check whether any third party interests affect the property.
What are General Legacies?
PRs would have to buy the specified property if it were not part of the estate at death.
Example: I give ‘a’ car to my daughter – would force the executors to pay money to get a car.
What are Demonstrative Gifts?
A type of general legacy which the will directs should be paid out of a specified fund. If there are inadequate funds in the fund, the beneficiary is entitled to receive what is left in the fund as a general legacy plus the balance.
What are Pecuniary Gifts?
Usually expressed in numbers and words.
£500 (FIVE HUNDRED POUNDS)
What are Residuary Gifts?
All which has not been disposed of under the will or any later codicil. It is the largest part of the deceased’s estate and can be given directly to beneficiaries or held on trust.
What is a common feature of professionally drafted wills regarding Residuary Gifts?
They tend to avoid separating residue, create express substitute clauses, and use an ultimate gift over clause.
What happens if a residuary gift fails?
There is often a substitution provision. Failure will result in partial intestacy and more administrative complications.
