Wills 1 - Validity and Property Passing on Death Flashcards
Outside will and intestacy
Joint
Insurance policies - benefit to someone else
Pension benefits - paid by trustees to family
Trust property - devolve according to terms of trust
Approach
Property passing outside of will
Property passing under will
Any property not disposed of
Usual clauses
Directions as to disposal (no legal effect)
Appointment of executors
Gifts
Specific
General - Corresponding to description .If does not own must obtain using funds obtained from estate.
Demonstrative - from particular fund
Pecuniary
Residuary
Valid will?
Capacity
Intention
Formalities
Capacity
Aged 18 or over.
Banks v Goodfellow (1870) - soundness of mind, memory and understanding.
Must understand
Nature
Extent of property
Moral claims ought to consider.
Parker v Felgate - if instruct to make but later lose capacity still valid. Appreciate signing will by solicitor following previous instructions.
MCA may make statutory will. Court of protection need full details of deceased, family, property and previous wills
If lacks capacity, will void.
If in doubt should ask medical practitioner for written report and ask doctor to witness. Record own notes.
Person asserting must prove capacity.
Presumption -
if will rational on face and showed no evidence of mental confusion.
Burden would shift to challenger.
Intention
General and specific.
Intend to make will and that specific will.
Burden of proof;
On person asserting will is valid.
Presumption of knowledge and approval -
has capacity and has read and executed will.
Does not apply where
Blind/illiterate not signing personally.
Suspicious circumstances
If
Force, fear, fraud undue influence and mistake
Where has capacity and known and approved contents;
Must prove ;
Force, fear, fraud
undue influence (hard to establish nothing short of coercion will have to pay costs if fail).
and mistake - actual mistake
Formalities of execution
S9 Wills Act 1837 -
-in writing, signed by testator and some other person in his presence and by his direction
-appears intended signature to give effect to will
-signature made or acknowledged by tester in presence of two or more witnesses present at same time
-each witness - attests and sign, or acknowledges his signature in presence of testator.
Remote witnessing -
31 January 2020 to 31 January 2024.
E-signatures not allowed.
Will posted to witnesses, then done in virtual presence of testator.
Will not valid until done.
Privileged wills
Actual military service or by mariner or seamen.
Mere oral statement
Intends to dispose of property.
Formalities
Burden of proof on person asserting
presumption of due execution -
Attestation clause -
‘Signed by testatrix in our joint presence and then by us in hers’.
Burden switches
Intestacy
Total intestacy
Partial intestacy on specific gift.
Statutory trust -
impose trust over all property in respect of intestate death. Held by PRs.
Spouse - married at time.
Void if unlawful marriage.
Voidable marriage (duress) is valid until such time court makes nullity order.
Entitlement;
Spouse or civil partner receives personal chattels absolutely.(personal moveable items) except;
-consists fo money or securities
-was used at death of intestate for mainly business purposes
-held at death of intestate as investment
-Statutory legacy plus BofE interest on which person died.
£270,000
In partial intestacy spouse does not account for things received under will.
-Residuary divided in half. one half on trust to spouse or civil partner. Other half held for issue on statutory trusts.
Spouse must survive 28 days.
If family home held in TIC or solely intestates. If living can ask to be apportioned in satisfaction of the trusts.
If worth more can pay difference.
Applying trust;
Primary beneficiaries are the children of intestate living at death.
Contingent upon reaching 18 or marrying before that.
If predeceases children of deceased living at death take parent’s share equally with same contingency.
If that person then dies their share passes if interest not vested. Issue must be living at intestates death.
If no issue all to spouse.
No spouse or civil partner
If none or dies within 28 days;
issue on statutory trusts
parents equally if both alive
brother and sisters of whole blood
brother and sisters of half blood
grandparents
uncles and aunts of whole blood
uncles and aunts of half blood
Crown (bona vacantia)
Each but parents and grandparents take on statutory trusts.
Adopted, illegitimate and IVF
Adopted treated as children and not of natural.
Any interest immediately before adoption is preserved.
If father unknown presumed to not exist unless contrary shown (illigitimate).
Surrogacy IVF etc.. covered by human fertilisation and embryology act 2008.
