🖋️ Wills 1: validity of wills and intestacy Flashcards
What order is the estate dealt with
- Prop passing outside will/intestacy
- Prop passing under valid will
- Anything else=intestacy
What property passes outside will and intestacy
- prop held as JT (survivorship)
- Life insurance for named beneficiary
- Pension benefits
- Equitable interest in trust property (pass under terms of trust)
Requirements for a valid will
- Formalities/due execution
- Capacity
- Intention
Formalities for valid will
1.In writing, and signed by the testator, or another in their presence and by their positive direction
2. Testator intended signature to give effect to the will
3. Signature made/acknowledged in joint presence of two or more witnesses
4. each witness either:
a. attests and signs the will
b. OR acknowledges their signature, in the presence of the testator (but not necessarily in presence of other witness)
Formalities: burden of proof and presumptions
- GENERAL: person asserting will is valid must prove
- EXCEPTION in most cases: Presumption of due execution arises if will inc. attestation clause a clause reciting that the s9 formalities were observed (will be present if drawn up by solicitor)
=Shifts evidential burden to anyone challenging will on the ground that it was not validly executed to rebut presumption.
Formalities: what happens if a will doesnt have an attestation clause
- HMCTS will require an affidavit of due execution (or witness statement verified by a statement of truth) from a witness/another present during the execution
- OR failing that, an affidavit of handwriting evidence to identify the testator’s signature
- or they will refer case to judge.
Formalities: attestation clause example
‘Signed by the testatrix in our joint presence and then by us in hers’.
Formalities: what counts as a signature
Anything that is intended to represent their name
But cant ONLY be on computer
Formalities: what does ‘presence’ of witnesses require
Mental and physical presence-have to know testatrix is signing a doc and have an unobstructed line of sign between them and testator
Formalities: do the witnesses have to know the testator is signing a will?
No, just a document
Formalities: consequence of witness being a beneficiary or the spouse of a beneficiary
Will valid but gift to them fails
Formalities: requirements to be a witness
None, just must be capable of understanding the significance of being the witness to a signature.
Formalities: Rules for remote witnessing of wills
Wills made 28 Sept 2020-31 Jan 2024:
* Presence; inc. videoconference ect
* Applies only where testators sign their wills themselves
* Procedure/guidance
1. Witnessing pre recorded videos not permitted
2. Witnesses and testator can all be at different locations or not
3. Testator must physically sign and date will 4. Will then be taken/posted to witnesses 5. Witnesses physically sign in virtual presence of testator and if possible, each other
6. Date each sign may be different but execution process not complete until everyone signed
What wills dont have to comply with the formalities?
Wills made on actual military service can be in any form inc oral statement
Formalities: what are solicitors duties (to avoid negligence claims)
Give clear instructions explaining:
1. how to sign/witness
2. warning that beneficiaries/those married to them shouldn’t be witnesses.
3. If testator executes at home, ask to return to check s9 is complied with.
Test for capacity
- Over 18
- Requisite mental capacity: ‘soundness of mind, memory and understanding’=Must understand:
a. Nature act and its broad effects (know making will to have effect on death)
b. Extent of their property
c. Moral claims they ought to consider ( understand who friends, relatives, loved ones are and that they may expect to receive money) - Not suffering from insane delusion which affects the disposition of property
Capacity: burden of proof/presumptions
GENERAL RULE: person asserting will is valid must prove
BUT PRESUMPTION OF CAPACITY in most cases applies if:
1. Will rational on face
2. Testator showed no evidence of mental confusion before making the will (Nothing brining capacity into question)
=Burden shifts to challenger rebut presumption and prove lack of capacity
Capacity: when must the testator have capacity?
Generally must have capacity at time will is executed
EXCEPTION (Parker v Felgate): will can be valid if have capacity when give instructions then loose by the time its executed if:
1. Instructions given to solicitor
2. Who prepped will in accordance with them
3. At the time the testator executes the will they appreciate that they are signing a will prepared in accordance with their previous instructions
Capacity: what happens if youre mentally incapable of making a will
Statutory will may be made on behalf under Mental Capacity Act 2005
Capacity: what is the golden rule for solicitors
If testator lacks capacity, will is void, so solicitor should:
1. ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity
2. ask dr to witness the will.
3. record their own view of the testator’s capacity in a file note
Intention: requirements for intention
When the will is signed, the testator must have:
1. General intention-to make a will (as apposed to another type of doc)
2. Specific intention- to make the particular will now being executed at the time
Intention: burden of proof and assumptions
GENERALLY: person asserting valid must prove
EXCEPTION: PRESUMPTION OF KNOWLEDGE AND APPROVAL arises if:
1. have capacity
2. have due execution
UNLESS (general rule applies):
1. Testator blind/illiterate
2. Didnt sign personally (need evidence to prove knowledge and approval)
3. Suspicious circumstances
Can you accept instructions to draw up a will for a 3rd party?
NO
How can the contents of a will be challenged via intention?
- Force/fear: actual/threatened injury
- Fraud: being misled by pretence
- Undue influence: freedom of choice overcome by intolerable pressure but judgement remained unconvinced (ie. Coercion not persuasion)
- Mistake: presumption of knowledge and approval does not apply if all or part of the will was included by mistake
Intention: can there be a presumption of undue influence on death?
No presumption of undue influence on death-for lifetime gifts only
Can intestacy rules be excluded?
No
What property does intestacy rules apply to?
only to property which is capable of being left by will
3 situations when the intestacy rules will operate
- Totally intestacy: theres NO WILL bc never made or was successfully revoked
- Total intestacy: there IS A WILL but its invalid OR it valid but fails to dispose of any of the deceased’s estate
- Partial intestacy: There IS A WILL , but it fails to dispose of all the deceased’s estate
What does the intestacy rules impose over property
A statutory trust:
□ Trustees=PRs
□ Trust inc. power of sale
□ Trust provides that PRs must pay funeral, testamentary and administration expenses, debts
After this, the residuary estate will be shared among family under intestacy rules
Intestacy: distribution where theres a spouse/civP AND issue
SPOUSE/CIVP (if survive 28d):
1. Personal chattels absolutely
2. Statutory legacy of £322,000 (or all residue if less) tax and cost free, PLUS interest from death until payment (at BoE rate that had effect at end of day of death)
3. □ 1/2 rest of the residuary estate on trust absolutely
ISSUE
□ 1/2 of rest of residuary estate on the statutory trusts
Intestacy: meaning of ‘personal chattles’
Tangible moveable property, OTHER THAN any property which:
1. consists of money or securities for money
2. was used at death solely or mainly for business purposes
3. was held at the death solely as an investment (inc. shares).
Intestacy: where theres surviving spouse +issue, what can happen with the family home
□ Held as JT-will pass via right of survivorship □ In intestates sole name/as TiC-wont automatically pass, if living in property, can require home transferred to them in part satisfaction of their entitlement (or pay the difference if entitlement is less)
Must formally elect to exercise right/notify PRs in 12mo of grant of representation
Intestacy: Distribution where there is a surviving spouse/civil partner but no issue
Whole estate passes to spouse/civil partner absolutely (if they survive 28d)
Intestacy: Distribution where there is no surviving spouse or civil partner (or they die within 28d)
Divided between ppl in highest category on all or nothing basis:
1. issue on the ‘statutory trusts’
2. parents (equally if both alive)
3. whole siblings on the ‘statutory trusts’
4. half siblings on the ‘statutory trusts’
5. grandparents (equally if more than one)
5. whole uncles and aunts on the ‘statutory trusts’
6. half uncles and aunts on the ‘statutory trusts’
7. Crown, Duchy of Lancaster (if die in Lancaster), or Duke of Cornwall (if die in Cornwall)(bona vacantia).
Intestacy: meaning of bona vacantia
vacant or ownerless goods
Intestacy: what discretion does the crown have if assets pass to them under the intestacy rules
Crown has discretion to provide for dependents/other people for whom the intestate might reasonably have been expected to make provision
Intestacy: what are the statutory trusts
Per stirpes distribution-each branch of family gets equal share rather than each member:
1. Children living at death (interests contingent on attaining 18 or marrying/forming civil partnership younger)
2. If child predeceses, living children of deceased child take share equally (contingent on attaining 18 or marrying/forming civ p younger),
3. if grandchildren predeceased, goes to great grandchildren ect
Intestacy: on the statutory trusts, what happens if an issue survives the intestate but dies without attaining a vested interest
- Normally, their interest would normally fail and the estate distributed as if they had never existed.
- However, if they die without attaining a vested interest but leaving issue, they will be treated as having predeceased the intestate so that they can be replaced by their own issue.
- To be substituted, their issue must be living
- at the intestate’s death.
Intestacy: how are adopted children treated?
As if part of adopted not biological family
But if minor child had contingent interest in estate of bio PARENT immediately before adoption, will retain this interest
Intestacy: how are children of unmarried parents treated?
Treated same as if parents married
BUT on intestacy of person who’s parents weren’t married and dad not on birth certificate, its presumed individual isn’t survived by their father
Intestacy: what are the rules under the Human Fertilisation and Embryology Act 2008
- Mother= woman who gave birth to child.
- Where uses sperm donor, husband/wife is the legal father/second female parent of the child (unless they didnt consent to the treatment).
- Where a mother undergoes treatment at a licensed clinic using donated sperm, she can give notice that partner is to be the legal father.
Intestacy: what must be done for surrogacy
Commissioning parents must apply to court for parental order conferring legal parenthood exclusively to commissioning couple
Intestacy: how long must a spouse/civp survive the intestate to get anything form their estate
28d or estate passes as though they’ve predeceased
