Wills Flashcards
What are the 4 requirements for a valid will?
- Testator aged 18 or over (except married minors & those in army)
- Testamentary capacity
- Knowledge and approval
- Formalities
What is needed to prove testamentary capacity?
a) Understand nature of act and its affects
b) Understand extent of property of which they are disposing
c) Understand & appreciate moral claims to which they ought to give effect to, and have no disorder of mind
Must have TC at time will is executed
What is the exception to the requirements necessary for testamentary capacity?
Those who lack TC at time of execution can still make a valid will provided:
- Had TC at time they gave instructions
- Will was prepared in accordance with those instructions
- At time of execution, they knew they were signing a will for which they’d previously given instructions
What is the golden rule for testamentary capacity?
When taking instructions from an elderly or seriously ill client, instruct a medical practitioner to make assessment of TC and a record with conclusion - best practice
When will testamentary capacity be presumed?
Where the will on face of it appears rational and has been duly executed
To challenge, must provide sufficient evidence to raise doubt
If provided, burden of proof falls on propounded of will to demonstrate TC’s satisfied
Where a client lacks TC and can’t make a valid will, what should a solicitor do?
Should not accept instructions
Although court can authorise execution on their behalf
What must be proved to show knowledge and approval?
Testator must have general intention to make a testamentary document which disposes of their property and takes effect following death
Must have specific intention to make the will they’re signing
When is knowledge and approval presumed?
If testator has TC and will is executed correctly
Can be rebutted if evidence raises doubt and burden of proof shifts
Where is there no presumption that there’s knowledge and approval?
Testator is blind or illiterate
Will signed by someone on behalf of testator
Suspicious circumstances
What should be done where there is no presumption as to knowledge and approval?
An affidavit of knowledge and approval should be submitted
When will there be no valid will even if there’s knowledge and approval?
Where will made due to undue influence or duress
If whole will due to UI, invalidates whole will
Where part, remainder can be given effect to as long as omission don’t upset what remains
What principles are there for undue influence?
Occurs where testator was coerced into making a will or including particular terms
Goes beyond persuasion
Question of fact
Burden of proving UI lies with person alleging it
Physical & mental strength of testator is relevant
Ask did testator act as a free agent?
What formalities are necessary to make a valid will?
- In writing and signed by testator or by some person in his presence and by his direction
- Appears testator intended his signature to give effect to this will (at end of will)
- Signature made/acknowledged by testator in presence of 2 or more witnesses present at same time (can’t be minors, drunk or of unsound mind)
- Each witness either attests & signs will, or acknowledges his signature in presence of T
What do attestation clauses do?
They are not mandatory but raise presumption that will was executed in accordance with requirements
If will executed in special circumstances, attestation clause should reflect these circumstances, providing evidence of knowledge and approval
What happens where a gift in a will is made to an attesting witness (or their spouse)? When won’t this apply?
Clause is void (will remains valid)
Beneficiaries should not act as witnesses as they won’t be able to inherit
Professional executor witnesses can still receive remuneration
Won’t apply if at least 2 other witnesses aren’t caught by this, or subsequently confirmed by properly executed codicil
What is the difference between an executor and an administrator?
Executor = PR appointed by will
Administrator = PR appointed by statute (if will or no will)
What is the primary duty of a PR?
To administer the estate
When will an executor appointed under a will be unable to act?
If they pre-decease testator, or die before taking out the grant
If they’re a minor
If they lack capacity
f they’re the testator’s former spouse & divorce took place after will made
If an executor is unable to act, what should be done?
Remaining executor(s) must apply for grant of probate but explain why all those appointed are not applying
If unable executor is minor/lacks capacity, probate issued with power reserved, who can make application when 18/have capacity
For executors unwilling to act, what options do they have?
- Renunciation
- Reservation
- Appointing an Attorney
What is renunciation?
Executor formally renounces their rights to apply for probate before grant issued and administration continues
Must sign form of renunciation, submitted when others apply for grant
Its final
When can an executor not renunciate?
If they’ve intermeddled i.e. taken steps indicating acceptance of appointment e.g. obtaining assets, paying debts, selling assets
What is reserving power?
For executors who don’t want to act initially and won’t apply for initial grant, but want to retain option to apply for probate later
Must be at least 1 other executor who takes out grant and notifies reserving executor
To act later, executor who reserved applies for grant of doubt probate (if administration not completed)
What is appointing an attorney?
An executor who doesn’t want to be directly involved can appoint another person to act on their behalf
Can be given before or after grant is obtained
If before, attorney applies for letters of administration with will, alongside normal executors applying for grant of probate
If all executors to a will are unable to act, what grant is applied for?
Grant of letters of Administration (with will) and an administrator is appointed
If an administrator is unwilling to act, what options does it have?
Renunciation
Appointing an attorney
- Remember to distinguish in MCQ whether administrator or executor in determining options
If a PR refuses to act but refuses to renounce, or has intermeddled but refuses to apply for grant, what can be done?
A court direction can be obtained to require person to take out a grant, remove their right to apply or authorise another to take on administration
How does one incorporate an unexecuted document into a will?
Refer to it in the will
1. Doc must exist when will is executed
2. Will must refer to doc being in existence at time of execution
3. Doc clearly identified in will
What options does a testator have to amend a will?
- Make entirely new will
- Make a codicil
- Make manuscript amendments
What is the difference between an obliteration and an interlineation?
Obliteration: text ahs been crossed out so original text is illegible
Interlineation: writing inserted between lines, often to add something previously omitted
What is the general rule for manuscript amendments to a previously executed will?
Post-execution amendments are invalid and unenforceable - alteration has no effect with original wording given effect to
Based on rebuttable presumption that alteration is made after execution - to rebut this, PRs produce affidavit evidence
What is an attested alteration?
An alteration executed like a will alongside alteration is valid
Are manuscript amendments made by another person valid?
No unless intended by testator and made in their presence, at their direction
If a manuscript alteration is not specifically attested, how can it be confirmed?
By re-executing will as a whole or executing a subsequent codicil
What exceptions are there to the general rule regarding alterations?
- Blank space that’s been completed is presumed to have occurred before execution i.e. it’s valid
- Where original wording is not apparent as it’s been obliterated, there’s intention to revoke and alteration is affective - if no intention, extrinsic evidence used to establish original gift
What is conditional revocation of alterations?
Where testator made an obliteration with conditional intent to revoke a gift i.e. substituted another figure for original wording but substitution failed
Court finds testator only intended to revoke original gift if substitution was successful, so if it’s not, alteration is not valid and original gift given effect to
In summary, what alterations are given effect to?
Made before execution of will/codicil
Obliterations with intent to revoke
Attested alterations
Completion of a blank space
Subsequently confirmed by re-execution or codicil, with reference to alteration
What are codicils?
Formal testamentary docs that amends an earlier wills, with both read together
Have same requirements for will to be valid
When is a codicil appropriate?
Adding, amending or revoking a provision to will
If testator wants to make significant changes to a will, what is advisable?
To make a new will
If there are no express words of revocation, what is the presumption regarding original will?
The terms of original will remain where possible, only revoked to extent of inconsistency
What is the effect of executing a codicil?
It republishes the will, with will given effect to as if it had been executed on date codicil executed
Can correct problems in earlier wills
What is the difference between revocation and revival in context of codicils?
Revocation = codicil may revoke a will in whole/part
Revival = codicil can revive a will that was revoked previously if it’s the testator’s intention unless will was revoked through destruction
What methods of revocation are there?
Destruction
By later will/codicil
Testator’s subequent marriage
Testator’s divorce
An effective alteration
What is revocation by destruction?
Needs a physical act destroying the original will with intention of testator who has same TC as to make a will
Must be by testator or at their direction, in their presence
Where will is missing or damaged, presumed to be destroyed otherwise evidence suggests otherwise
If will can’t operate with remaining parts, whole will revoked
What is revocation by later will/codicil?
Might be an express revocation clause
Implied revocation where a later valid will is inconsistent
What is a mirror will and a mutual will? How do they deal with revocation?
Mirror will: same terms - each person free to revoke at any time
Mutual will: 2 or more people make wills on agreed terms, agreeing that neither will amend without consent of other - if 1 tries to revoke, constructive trust imposed
What is revocation by testator’s subsequent marriage? What can be done to remedy this?
A subsequent marriage automatically revokes a will made before
A T can draft a will in contemplation of marriage, naming specific spouse and intention as to revocation
Can’t avoid with a hypothetical marriage or where they marry someone else
What is revocation by divorce?
If will made before divorce, operates as partial revocation to clauses former spouse relates to
Treats former spouse as if they’d died
Subject to any contrary intention
What does ‘children’ include for a gift made to children in a will?
Illegitimate, legitimate and adopted (not stepchildren)
What are class gifts?
Gift given to group of beneficiaries who meet a general description
What rules on construction are there for class gifts?
Class closing rules: class closes when 1 member first becomes entitled in possession
What is the difference between specific gifts, collections and chattels? What do chattels not include?
Specific Gifts: particular item owned by deceased at date of death - if not owned at death, gift fails
Collections: gift of collection of items - should be clearly identified to avoid uncertainty
Chattels: personal possessions (except money, security, assets used at death solely or for mainly business purposes or solely held for investment purposes)
How does property owned as joint tenants pass?
Outside succession estate, by survivorship to coowner
What are general legacies and demonstrative gifts?
General Legacies: gift of property not distinguished from property of a similar type e.g. pecuniary
Demonstrative Gifts: type of general legacy that will directs should be paid out of specific fund
What is a residuary gift?
Gift of all testator’s property which hasn’t already been disposed of under will/codicil
If a beneficiary dies before a testator, what is the effect?
If an asset given in an earlier gift fails, what happens?
What happens where a residuary gift fails?
- Gift fails
- Gift usually passes under residue clause
- Results in partial intestact
To avoid gifts failing, what should a testator do?
Include express substitutional clauses
Use ultimate gift
What areas of construction are there for a will?
- Date from which will speaks
- Relieving provisions
- Survivorship provisions
What are the rules for ‘date of which will speaks’ for property, collections and people?
Property: unless contrary intention shown, will speaks from date of T’s death
- Contrary intention shown by words e.g. ‘my’ ‘now’ ‘at present’ which means, if don’t exist at death, gift fails unless express substitution
Collections: will speaks from date of death - wording doesn’t change it
People; speaks from date of execution unless contrary intention
What are relieving provisions and what 3 main ones are there, with general rules?
Deal with matters as to who should bear burden of taxes, expenses and costs
1. IHT: in absence of express provision, payable out of residue with gifts made free of IHT
2. Expenses/Costs of Transfer: in absence of express provision, specific beneficiaries bear costs of delivery & expenses incurred in preserving them since death
3. Charges
Where meaning of a will/codicil is unclear/ambiguous, what can be done?
Courts can rule on how it should be constructed
What are survivorship provisions? What is the position where there’s a valid will?
Stipulate that to take a gift, beneficiary must survive T
If beneficiary pre-deceases, gift lapses
No specified periods for any beneficiary with a valid will
Express survivorship clauses should be included if desired as no default
What are substitutional gifts?
What T would like to happen in event of gift lapsing
What will happen, in absence of express substitution clauses, to gifts in a will that failed as the beneficiary pre-deceased testator? Who does this apply to?
It will go to issue of pre-deceased, to be shared equally
This only applies gifts to T’s issue (i.e. not gifts to siblings, parents etc)
This can be excluded
What is partial intestacy?
When will doesn’t cover whole estate
What property does not pass to succession estate?
DMC
Discretionary pension scheme benefits
Insurance policies written intrust (if benefit is for another person)
Statutory nominations
Property held as beneficial JTs
Some other beneficial interests under trusts and property held in trust (if life tenant under life interest trust)
Under intestacy rules, what is the starting point when determining entitlement?
Determine which relatives have survived T
If spouse and/or issue have survived, don’t consider anyone else
If spouse/issue have not survived T, consider other relatives in order of priority
How long must a spouse survive a T to benefit under intestacy?
28 days
Under intestacy, what happens if spouse survives but no issue? If issue but no spouse? Or if spouse doesn’t survive by 28 days?
Spouse but no issue = spouse inherits everything
Issue but no spouse = issue inherit everything under statutory trust
Spouse dies within 28 days = operates as if no spouse
Always check if issue of T left issue of their own
If both spouse and issue survive an intestate T, how is entitlement determined?
Spouse gets all personal chattels, £270,000 statutory legacy and 1/2 of residue
Issue gets other half of residue
When there’s no spouse or issue, under intestacy, what is the order of entitlement?
Parents
Siblings of whole blood
Siblings of half blood
Grandparents
Uncles/aunts of whole blood
Uncles/aunts of half blood
Crown
Where more than 1 person in relevant category, share equally
