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Wills > Will Drafting A&Q > Flashcards

Will Drafting A&Q Flashcards

1
Q

What is included in an introductory clause of the will?

A
  1. Commencement
  2. Revocation
  3. Burial/Funeral wishes
  4. Appointment of executors & trustees
  5. Appointment of guardians
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2
Q

What are the clauses disposing of property?

A
  1. Specific gift
  2. General gifts
  3. Pecuniary gifts
  4. Residuary gifts
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3
Q

What is included in the bottom of the will?

A
  • Administrative Clauses
  • Date and Attestation
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4
Q

What is the purpose of the commencement clause?

A

To identify the testator (stating their full name and address). The testator’s occupation is sometimes added.

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5
Q

Where should the date be included when drafting the will?

A

In the commencement or at the end of the will.

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6
Q

What would happen if the testator is known by another name or owns assets in another name in the commencement clause?

A

If the testator owns assets in another name the grant of representation must refer to each possible alias. if it does not, it will not be possible to administer all of the estate.

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7
Q

Can a revocation clause be included as part of the commencement clause?

A

Yes

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8
Q

Can a revocation clause be as a separate clause?

A

Yes

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9
Q

What is the purpose of a revocation clause?

A

It ensure that all previous wills/codicils (both are testamentary doc) are revoked so only one valid will exists at any one time.

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10
Q

Is a will valid without a revocation clause?

A

Yes

*but one should be included as a matter of good drafting to avoid uncertainty.

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11
Q

What is the affect of having more the one valid will?

A

The later will impliedly revokes the earlier will but only to the extent that it is inconsistent with or merely repeats the terms of the earlier will.

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12
Q

What are the other methods of revoking a will either in whole or in part?

A
  • Way of codicil

-Destruction of the will

-making effective manuscript amendments

or
-express revocation by way of a later will.

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13
Q

When are Burial & Funeral wishes inserted in the will?

A

At the start of the will before the operative provisions.

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14
Q

What is the purpose of the burial & funeral wishes?

A

To direct what should happen to their body after their death and have specific funeral and burial instructions they would liked followed.

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15
Q

Are burial & funeral wishes legally binding on the personal representative?

A

No but will normally be followed where possible.

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16
Q

What is the role of personal representative?

A

To collect in the deceased’s assets and administer the estate (s.25 Administration of Estate Act 1925).

They must pay the deceased debts, administration costs and distribute assets to the correct beneficiaries.

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17
Q

What is a personal representative appointed by will referred to as?

A

An executor

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18
Q

Where do executors power to act come from?

A

From the will

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19
Q

What happens if a will does not appoint an executor ?

A

The Non Contentious Probate Rules (NCPR) determine who acts as a personal representative.

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20
Q

What is a personal representative appointed by the Non Contentious Probate Rule (NCPR) referred to as?

A

An administrator

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21
Q

Is a testator free to choose their executor?

A

Yes

22
Q

Can a minor or someone who lacks mental capacity act as an executor?

A

No

23
Q

Can a testator appoint an executor who is bankrupt?

A

Yes

*but they may be unable to preform all personal representative functions and is therefore an unwise choice.

24
Q

What is the minimum amount of executors required for a will?

A

One

25
Q

What is the maximum amount of executors required for a will?

A

Four

26
Q

Wat happens if the will more than the maximum number of executors are named?

A

The power is ‘reserved to those who do not apply initially to apply later if any vacancy arises.

27
Q

How does the appointing a spouse or civil partner as an executor in a will change if the testator later undergoes a divorce or dissolves their civil partnership?

A

Unless stated otherwise the appointment of a spouse/civil partner becomes ineffective if the testator later divorces/dissolves their civil partnership (s18A / C Wills Act 1837).

28
Q

What is the scope of an executors appointment?

A

Absolute and unrestricted.

*However qualified appointments are possible

29
Q

What can executor’s rile be qualified by?

A
  • Time ( e.g take effect only for a fixed period or id they survive the testator by a certain period)

-Location of assets (e.g Only UK assets)

or

  • Type of assets (e.g. only business assets)
30
Q

How does the requirement for a qualified appointment impact the drafting of a will?

A

Where a qualified appointment is made the drafter must ensure all of the estate will be administered and no assets passing under the will are left without an executor appointed to deal with them.

31
Q

What is the effect if it is not clear that someone has been appointed to that role, or there is ambiguity about who is supposed to fulfil the role?

A

The appointment may be void.

32
Q

What would happen if a trust arises following the testator’s death?

A

At least two trustees should act (or a trust corporation).

33
Q

Can you appoint the same person(s) in capacity as both executor and trustee?

A

Yes, but it is not necessary

34
Q

Can a partnership be appointed as an executor ?

A

No, as it does not have a separate legal identity distinct from its partners.

35
Q

Can a limited liability partnership be appointed as an executor?

A

Yes, has legal capacity to apply for a grant of representation

36
Q

What is a trust corporation?

A

A specific type of corporation with authority to carry out trustee and PR roles.

37
Q

Can a trust corporations be appointed as executor?

A

Yes

38
Q

Can an Limited Liability Partnership or trust corporation be appointed as a sole executor and trustee?

A

Yes

39
Q

Who can charge for their role as executors?

A

Only professional executors and trustees may charge for their time (s.29 TA 2000). by adding a express charging clause.

40
Q

Is receiving payment for services under s.29 TA a breach of fiduciary duty?

A

No

41
Q

When does a testator appoint a legal guardian?

A

A testator with parental responsibility may appoint a legal guardian for their infant/children by will (s.5 Children Act)

42
Q

What considerations should a testator bear in mind regarding the willingness of proposed guardians to assume their role, and is there an expectation for the designated guardian to accept the appointment, given the responsibilities involved?

A

Acting as guardian is a position of responsibly and the testator should obtain consent from the proposed guardian(s) that they are willing to act. A guardian is not required to accept their appointment.

43
Q

What is the executor role?

A

An executor’s primary duty is to administer the estate.

Once they have distributed the remaining assets to the beneficiaries their task is complete.

44
Q

What is the trustee role?

A

A trustee is responsible for the management of any trusts that continue following the estate administration and this role continues for as long as the trust is in existence.

45
Q

Where does executors and trustee power derive from?

A

Statute

Common law

and/or

Express powers conferred by the will.

46
Q

What is the effect of a will that does not contain an express administrative power?

A

Only statutory and common law powers will apply.

*This is also the case when someone dies intestate.

47
Q

What happens if an express power is in conflict with a default power?

A

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

48
Q

What can an express power do?

A

Express power may:

  • Restrict

-Re-state

  • Expand the default position

-Create new powers which would otherwise not exist.

49
Q

Where are the express administrative provisions contained in the will?

A

At the end of a will after the clauses that dispose of the testator’s property.

50
Q

What is an attestation clause?

A

Describes the circumstances in which the will was signed

Wills (7 decks)

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