Wills Flashcards
What order should you deal with passing of assets when someone dies?
- Does anything pass independently?
- Do they have a will?
- Is their will valid?
Where are the intestacy rules set out?
Administration of Estates Act 1925
What property passes outside the will and intestacy rules?
- Joint property
- Some insurance policies
- Pension benefits
- Trust property
When does property pass outside a will?
Joint beneficial tenancy.
Passes under survivorship.
What type of life assurance policy passes to the estate?
Simple life assurance policy
Passes to estate and PRs distribute according to will/intestacy rules
(i.e. doesn’t pass independently)
What happens to a life assurance policy (form of insurance) written in trust for benefit of beneficiaries?
Paid to the named beneficiaries, regardless of will/intestacy rules
Still passes with their estate
(think ignore that for now ^)
General position where pension scheme pays benefits for an employee who dies in service?
Trustees of sum pension fund (investors etc.) pay lump sum to family/dependents at their discretion
Do independently of will/intestacy rules
When would pension benefits go under will/intestacy rules?
If pension scheme provides that lump sum must be paid to their PR
(rare)
What happens to trust property which a testator is a beneficiary on upon death?
Life interest
passes on death.
Devolves under terms of the trust and NOT WILL/INTESTACY.
What is a revocation clause and should they always be included? Explain why/why not.
Revokes former wills. Yes, avoid searching prior wills after death.
(“I revoke all former wills, codicils and testamentary dispositions”)
How should provisions specifying how want body to be disposed of be followed?
No legal effect - up to testator to make people aware of wishes.
but still inc in will if testator asks
What is a grant of probate and how do you get one?
Confirmation that a will is valid and executor has authority to act
Apply to Her Majesty’s Courts and Tribunals Service Probate
What does an executor do?
- Collect assets
- Pay debts and any inheritance tax
- Distribute remaining assets to entitled under will
Does an executor need to be named in a will?
Yes - will be an administrator if not
What is a gift of legacy?
gift of personalty
i.e. personal property
also covers realty (aka devise)
i.e. real estate
What is a gift of realty?
gift of real property (land and buildings on any land)
(e.g. gift my home)
aka legacy
How can gifts in a will be classified (beyond realty and personalty)?
- Specific
- General
(out of this account) - Demonstrative
(find it) - Pecuniary
- Residuary
(S - GDPR)
What is a specific gift?
Of a specific item which testator owns and is distinguished in will from rest of their assets
(e.g. my rolex)
What is a general gift?
Item(s) corresponding to a description
If they didn’t own at time of death, executor must obtain using funds from estate
e.g. 100 shares in X plc to my son - must be purchased
(the GENERAL told me to go and find it)
What is a demonstrative gift?
General in name but directed to be paid from a specific fund
e.g. £500 from my Santander savings account
Classed as specific if ENOUGH money to pay but if no account and so paid from estate, classed as general
Pecuniary gift
Gift of money.
Can be specific (e.g. £100k to X) or general (£100k)
What’s a residuary gift?
For residue of estate i.e. all remaining money and property
Usually most substantial gift in will
Requirements for a valid will
- Capacity
- Intention
- Formalities
(CIF)
The main thing to demonstrate capacity to make a will?
(before consider any case law)
- Over 18
- Requisite mental capacity
Which case set out requisite mental capacity for testators?
Banks v Goodfellow
(little MC fellow)
Capacity test / B v G
MMU delusion
- Moral claims
Considered any moral claims - Memory
Know nature and extent of their property (roughly speaking) - Understanding
Nature and effect of docs being signed - Not suffering some delusion of the mind
Case re exception to general rule on capacity
Parker v Felgate
Will it matter if lost capacity by time signed will?
(Parker v Felgate)
Dm as long as:
- capacity at time instructed
- understand signing will complies earlier instructions
- instructions to solicitor
- who prepped will in accordance with them
(at time instructed EOD b parks i had and also was a sol at the time)
What happens if mentally incapable of making a valid will?
Statutory will can be made on their behalf under MCA
Authorised person (CoP) would execute the will and CoP attaches seal (i.e. makes enforceable)
CoP need lots info re deceased/previous wills/family/property and only approve if in best interests
What is the golden rule re capacity?
If in doubt ask medical professional to:
1. provide a written report confirming has TESTAMENTARY CAPACITY; and
2. witness the will
Solicitor should record their own view (and all docs) of capacity on file in case queried
(golden like al)
General rule on burden of proof to prove will is valid?
Person asserting a will is valid to prove it
(executor)
when will presumption capacity arise?
Yes, if:
- Will is rational on face of it; and 😶
- No signs of mental confusion/raise doubts 🤨
Who is the burden of proof re capacity on?
PRs
Discharged if rational on face of it and no signs of mental confusion
Then flips to person challenging
Factors inc likelihood court finding capacity
- Rational
- Experienced and independent solicitor (met and explained)
- Report or witnessing medical practitioner
What constitutes meaning of intention for wills?
Intended to make
- a will
(not other doc) - this specific will
- knew and approved contents
What is the rule for burden of proof re intention?
Executor / administrator must prove
Usually presume knowledge/approval (and therefore intention)
Unless BSFM
(suspicious, mistake, fraud/force/fear/undue inf, blind/illit)
When is a testator presumed to have intention?
- capacity 🧠
- read and executed the will ✍️
When will the presumption of intention not apply?
- blind/illiterate/ not signed personally (e.g. broken hand) (BIP)
- Suspicious circumstances
- Force, fear, fraud and undue influence
(und inf is duress) - MISTAKE
B, S, F, M
What require if blind/illiterate/not signed personally?
HMCTS require evidence to prove knowledge and approval before grant of probate
What should you inc in will if blind/illiterate/not signed personally?
Statement at end of will
Read by testator who knew and approved the contents
Examples of suspicious circumstances and who must prove intent?
Prepared by someone who would be/relative of major beneficiary
Solicitor benefits and not got independent advice/limited intelligence
No evidence of reading/explained will
BoP: person seeking to argue it is valid
(eg the major beneficiary)
In what circumstances can you disprove intent, even though they have known and approved?
Force or fear (actual or threatened injury)
Fraud (eg after being misled)
Undue influence (coerced but their judgment remained unconvinced)
FFFU
What is the most difficult and risky on FFFU?
Undue influence
aka duress
Not just persuasion
Have to prove it - so need evi from family, friends and carers.
Serious allegation so insufficient evi = costs.
What happens if mistake in will?
(Part or whole)
Presumption of knowledge and approval doesn’t apply.
Omitted from probate UNLESS misunderstanding as to true legal meaning of words used.
Two types of mistake in will and differences
- Actual (ie abence of knowledge and approval); and
- misunderstanding re true legal meaning of words used
Latter will not be omitted in grant of probate
Formalities of execution of will
Must be:
- In writing
- Signed
- Intended for signature to give effect to will
- Witnessed
(WSIW) - what sounds incredible wasn’t
What act sets out formalities for execution?
Section 9 Wills Act 1837
Explain the requirement that a will must be written in writing. How strict is this? What material should it be written on?
No restrictions on type of wording or materials
(Could be typed or handwritten)
(Doesn’t have to be on paper)
Is an electronic will valid?
No.
Too easy fraud.
Requirements for signature a will
Anything as long as INTENDS for signature to represent their name
e.g. Your loving mother
ALSO INCLUDES crosses/thumbprint
(eg illiterate and use thumb print - that is valid)
Provided intend for signature to attest will
Can another person sign a will on a testator’s behalf?
Yes:
- in testator’s presence
- at testator’s discretion
Must give POSITIVE AND DISCERNIBLE DIRECTION (verbal or non-verbal)
(e.g. too weak or injured hand)
Two stages to signature must be witnessed
- Testator signature acknowledged in presence of two witnesses
- Witnesses signature must be in presence of testator (but not of each other)
What constitutes presence for witnessing will?
- Mentally present (that testator is signing a document - doesn’t matter if not a will)
- Physically - see or be able to see testator signing (unobstructed line of sight)
If witness requirement not fulfilled, what is an alternative?
Acknowledgement of signatures
- witness or testator confirm that signature is theirs.
(e.g. testator signs in front of one witness, so not valid. but if testator acknowledges their signature in front of second witness and both witnesses then sign in testator’s presence, this is valid)
(e.g. W2 signs when testator leaves room to answer call. Valid if W2 acknowledges signature to testator)
Requirements re capacity of witnesses?
No formal requirements.
Capable of understanding significance of being a witness.
18 or over and not blind (seen separately)
What is the position if a witness is a beneficiary or spouse or civil partner of a beneficiary?
Will remains valid but their gift fails
Can you witness a will remotely?
Can u sign on testator’s behalf remotely?
Yes - video conference / other visual transmission
But only where testators signs will themselves
No not on behalf - must be in actual presence
Government guidance on remote witnessing (6 points)
Can u witness acknowledgement of a former will?
- Can’t witness pre-recorded videos
- Can all be at diff locations
- Testator must physically sign the will or acknowledge an earlier physical signature
- Will then taken or posted to witnesses
- Witnesses must physically sign in virtual presence of testator and if poss other witness (not electronic signature)
(all use date they are signing)
Exception to formalities (s9)
Privileged wills
Where:
- on actual military service
- seaman
Requirements for a privileged will
Any form, inc oral statement (s11 Wills Act)
Just intend to dispose of property after death
(e.g. “make sure Anne gets all my stuff” - valid)
General rule on burden of proof on whether a will is valid
when presumed?
Person seeking to argue that it is valid
But presumed if:
- Capacity: rational on face and no doubts mental confusion
- Intention: Read and executed
- Formalities: due execution if attestation clause
(^ presumptions are rebuttable)
When does presumption of due execution arise?
Attestation clause followed
(states formalities are followed)
(e.g. signed by testator in our joint presence and then by us in hers)
Flips burden to person arguing it’s not valid
What’s an attestation clause, inc what section is involved?
States that s 9 requirements for valid will complied with
Means presumed to be executed and flips burden of proof
What needed if will doesn’t contain an attestation clause?
affidavit of due execution
or witness statement verified by statement of truth
by
- witness; or
- anyone else present
OR
affidavit of handwriting evidence to identify signature
or refer case to a judge
What are solicitor’s duties when preparing wills?
- Clear instructions to clients explaining how to sign and witness
- Warn beneficiaries and those married to beneficiaries shouldn’t witness (s15)
- Good practice: Execute a solicitor’s office so supervised
- If at home, ask them to return and check it
(failure above could = negligence)
Who do solicitors have a duty to in advising on wills and implication of this?
Beneficiaries.
Means negligence liability.
What must you broadly consider to determine effect of gifts in will?
Actual wording used
What property they owned
Who the people named and described in the will are
Whether they survived the testator
What are the two basic presumptions which the court applies re wording in will?
(intention)
- Non-technical words bear their ordinary meaning
- Technical words are given their technical meaning
gift of personal estate construed as what?
Gift of personal estate - given technical meaning of personalty over realty
(for info this is re cook)
(also dont think super imp was example in textbook showing technical words give technical meaning)
If terms are several ordinary meanings (e.g. money could be coins and everything they own), what should the court do?
Consider it in overall context of the will
Can the two basic presumptions be rebutted?
(ie that technical words take technical meaning and non-technical take ordinary)
Yes if clear testator using word in different sense
When considering the ordinary meaning of words, what else will court consider?
Context and common sense
What is the basic rule on whether a a court look at additional evidence to try and establish a testator’s intention?
No
What happens if meaning of gift is unclear?
Fails for uncertainty
But remember courts apply context/common sense, even though generally don’t look at additional evidence - which may mean doesn’t get to this stage.
(external evi if ambiguous / meaningless (inc if other evi shows it is in context))
(ambiguous / meaningless and additional evi would assist = can use)
What are the exceptions to when a court will consider extrinsic evi to consider testator’s intentions?
- meaningless OR ambiguous OR evi shows language is ambiguous given circumstances
AND
- Evidence would assist in interpreting
(e.g. left all to his mother, who he knew was dead at time of drafting will, external evi showed he called his wife mother - fine)
What power does court have (and not have) to ensure a will reflects testator’s intention?
Can’t rewrite
But can rectify
When can a court rectify a will?
Satisfied that will expressed so that it fails to carry out testator’s INTENTIONS due to:
- A clerical error (e.g. misspelling/used wrong precedent/carried over info from old will); or
- Failure to understand testator’s instructions.
(baso when law firm’s fault)
If words are INCLUDED by mistake, what could court do?
Admit will to probate with those words omitted
Basic rule re when will be interpreted FROM?
Implication of this in terms of gifts?
As if executed immediately before death
So property they owned when died, regardless of whether they owned it at time will was made
speak from date of death
(bit crepy)
When does a will not speak from date of death?
Words which suggest contrary intention by referring to the present/time made will
Will defo be if “all property I own now”
If specific item/thing - “my eldest daughter” “my car” - courts interpret as date of will, unless is something which may increase or decrease in number
(e.g. “my collection of cars” - interp from date of death)
“my car” vs “my collection of cars” - how would they be interpreted?
My car = car owned at time of will. if don’t have, fails.
My collection = cars in the collection at date of death
If beneficiaries are given by name, how do you identify them?
Locate them, establish whether they survived the testator and if not, the effect of their prior death on the gift
Who are beneficiaries construed as being?
e.g. eldest daughter of Kate. eldest dies.
What testator intended in will / those alive then.
Unless contrary intention in will.
e.g. to my eldest daughter, two daughters - eldest died - goes to eldest’s estate.
If family are referred to a class of beneficiaries, wil step-children count?
Blood relatives
Step-children don’t count unless will states otherwise
What is the normal meaning of issue?
Direct descendants of any generation
(i.e. not just children but grandchildren etc also)
Who are adopted children treated as the issue of? Exception.
Their adoptive parents, and not in will of birth parents
But if the birth parents died adopted before interest vested, their interest will be unaffected
e.g. aged 2 birth parents die, will gives if reach 25, adopted aged 6 - then u get it.
Exception is if contrary intention in the will
the reason this took me so long is i didnt realise estate being vested meant parent had died
Are you entitled to gifts under succession rules to either parents’ estate if they are unmarried?
Yes
(e.g. even if you were born out of an extra-marital affair)
If born under Human Fertilisation Embryology Act, whose will are you a child under?
Legal parents
When would a transgender woman be allowed to claim gift in a will which addressed to female relatives?
If the will was made after 4 April 2005
If transgender person misses out on something under will due to their gender reassignment (i.e. they would have got it if hadn’t reassigned), what can they do?
Apply to High Court
Who can make an appropriate order if consider it just
(e.g. payment of a lump sum)
(J high)
What are trustees/PRs protected from re transgender beneficiaries?
- INVESTIGATING whether *gender recognition certificate issued or revoked before distributing; and
- Liability for distributing without considering the above ^ been issued/revoked
What could a beneficiary do if lose out because gone to someone transgender who didn’t have certificate
Follow the money or property representing into their hands
UNLESS purchased it for value and no notice + good faith
Would a gift to John’s wife be a gift to John’s civil partner?
No
What is the basic rule if a gift fails?
Goes to residuary estate
(ahh I always get this wrong!)
What if a gift of residuary estate fails?
Partial intestacy - so it will pass under intestacy rules
What are the ways in which a gift could fail?
- Uncertainty
- Beneficiary witnesses will
- Divorce or dissolution
- Ademption
- Lapse
- Disclaimer
- Forfeiture
When will a gift fail for uncertainty?
Exception to this where court would say no!
Wording not allow identification of beneficiaries or subject matter and Court cannot establish intention
Exception for charities - provided clear it is for charitable purposes, Court can pick a charity
When will a gift to a witness beneficiary still be valid?
- Codicil confirms the original will and is not witnessed by the beneficiary
- The will would still be valid even if the beneficiary hadn’t signed it
(e.g. three witnesses)
If marriage is divorced or dissolved (e.g. annulment) after will, would ex have any entitlement?
No. Passes as if spouse died on date of divorce/dissolution.
(applies to gifts and them being an executor)
(e.g. substitutional gift that if husband dies, goes to kids takes effect takes effect)
What is ademption and how does it differ from lapse?
Will a gift be adeemed if uncertain?
Ademption: fails because no longer own that specific property at death
(adem. property. gaml.)
Lapse: beneficiary predeceased
Nope - that just fails for uncertainty - different thing
If an asset has been retained but changed in nature, does ademption apply?
(e.g. specific gift on company shares but that company since taken over by another)
Depends
Is the asset SUBSTANTIALLY THE the same (ie merely changed in name or form) or
Changed in substance (meaning adeemed)
Will a gift be adeemed if replaced it?
e.g. my car - replaced
e.g. my pearl necklace
e.g. my jewellery
If of specific item, presume adeemed:
- MY means the one at execution
(had a ford, now a ferrari, no Ferrari)
^ this interpretation can vary. may consider value and circumstances.
If capable increase and decrease (e.g. my jewellery) - assume what satisfies at death - even if all replacements
(e.g jewellery robbed, replace it, take that)
(but if said my pearl necklace, would have adeemed)
^ ALL unless can show contrary intention.
What is a codicil?
Document adding to or amending a will.
Updates original will. Must be read in conjunction with original will.
Must be executed in same way as will.
If gift lapses, where does it go?
If beneficiary dies before the testator, goes into the residuary estate
If the gift was to the residuary estate already, then intestacy rules apply
When would a gift lapse but usual rule not apply
- substitutional gift (if X dies, give it to Y)
- contrary intention (e.g. worded in will so that goes to holder of position)
- Section 33 Wills Act applies (they have issue who it passes to)
(lapse = predeceased)
What does it mean if a gift vests on testator’s death?
Provided beneficiary survives (even for short amount of time), it takes effect
If they die - goes to their estate
Section 184 LPA 1925 - If deaths of testator and beneficiary close together and cannot establish order of deaths…
Eldest deemed to have died first
What is a survivorship clause?
Gift fails if beneficiary does not survive X days after death of testator
Usually 28 days
Can apply to all gifts in the will
(otherwise would go to the other deceased’s estate)
If gift made to two parties and one dies, what happens? What is the exception?
- class gift?
- Jointly?
The other party receives the whole gift.
(e.g. A and B jointly, A dies - all goes to B)
(state this in will if testator says they are to own jointly)
Unless words of severance ie gifted separate amounts
(e.g. equal shares)
Deceased parties’ share would lapse and pass under intestacy rules unless substitutional gift
If class gift (eg nieces and nephews), no lapse unless ALL members of class predecease
If a gift is a class gift (all my nieces and nephews), will the gift or part of it lapse if multiple die?
No - will vest in remaining one(s)
Will lapse only if all predecease
Section 33 Wills Act 1837
If gift to one of their direct descendents (child/grandchild) who predeceases them and have issue of their own who are alive, automatically passes to their issue.
(e.g. daughter predeceased but had her own daughter, passes to the granddaughter)
If multiple, they take in equal shares (e.g. daughter has 3 kids)
Not apply if contrary intention shown.
Can a beneficiary disclaim a gift? If so, what would happen?
When will they not be able to disclaim?
Yes
Treated as predeceased (lapse)
- falls to residue, intestacy or direct issue
However if received a benefit from a gift, taken to have accepted and so can no longer disclaim
(e.g. payment of income)
If you unlawfully killed someone, are you ever entitled to gift?
No - unless:
- insane; or
- in cases other than murder, court considers that justice demands it (e.g. assisted suicide Dignity’s)
If forfeit entitlement (i.e. unlawfully kill), who does your gift go to?
Unless contrary intention, treated as if predeceased.
(i.e. lapse - goes to residue, intestate or their direct issue)
What is the effect of a will being revoked?
Nullifies it (either in part or whole)
How can a will be revoked?
- By a later will or codicil
- Destruction
- Marriage or civil partnership
Why is it advisable to date a will/codicil?
Most recent will have effect over others
Will a court ever find that a testator did not actually intend to revoke a will, despite expressly stating this?
Yes, if revocation is seen as conditional on an event which has not happened
CONDITIONAL REVOCATION.
How can you revoke a will through destroyal?
Can someone else revoke for u?
Physically destruct
- tearing/burning etc
- SYMBOLIC not enough
NOT “this will is revoked”
NOT striking line through
- BUT if vital part destroyed - e.g. signature - then may work and destroy whole will
If destroy one part, may revoke only that part if rest of will is intelligble / can operate without.
AND
Intend revocation
- fully redact “£50 to John” - no gift to John (I guess obvs intended
Yes - if presence and direction
If accidentally destroyed, what will court do?
Look at available evidence to establish contents (usually a copy of original will but sometimes oral evidence of those involved)
Doctrine of dependent relative revocation
Court save a will if testator’s intention to revoke by destruction was conditional on some future event (eg execution of a new will) which did not happen
Required capacity to revoke a will
Same as will (i.e. mmu/delusion)
What happens if marry/CP after drafting a will? (General rule)
Automatically revoked
Expectation to general rule on impact of marriage on a will?
Express that intend to marry specific person
AND express intend for will not be revoked
e.g. intend to marry nadia and do not want this to revoke this will.
If civil partnership converted to a marriage, is the will revoked?
No
If divorce/dissolution, any _______ provisions would apply
Substitutional
(e.g. if I die, want it go to x person)
(if none, will continues as it was)
Can a testator ever be held to an agreement not to revoke their will or a specific part of it?
term for thing similar to this?
Yes - if doing so would be breach of contact
Mutual wills
What are mutual wills?
Two people make wills in similar terms AND make clear AGREEMENT on how survivor disposes of deceased testator’s estate
(e.g. husband and wife - whoever survives leaves their estate to wife’s daughter from previous relationship)
What if surviving party revokes mutual will and term for this?
Doctrine of mutual wills.
If deceased party fulfilled their side of bargain, equity imposes constructive trust over all of survivor’s estate.
In favour of beneficiary under original mutual will.
(e.g. husband and wife mutual will, wife dies and her estate goes to X then husband revokes, trust imposed in favour of X)
If both testators still alive, can a mutual will be revoked?
Yes if mutual decision
No if unilateral decision by one party - breach of agreement and can seek contractual damages, and allows other testator to revoke if want to
Will beneficiary always receive their intended benefit under an unrevoked mutual will?
No - the survivor free to spend their money how they wish so may be nothing left.
Although not permitted to do so with the intention of defeating the agreement.
Intention required for codicil?
Same as will.
Intended to - simply referring to existing will fine.
When is a will with a codicil attached deemed to take effect?
Date of codicil
How could you use additional documents to validate a gift which is otherwise invalid due to beneficiary acting as witness?
A codicil witnessed by someone who is not the beneficiary
How can you show you change mind on revocation of will?
Codicil, if can show it intended to revive.
Either:
- express state that intend to revive; or
- make a gift which means could have had no other intention but to revive
Own idea:
“i intend for this codicil to revive my former will ___ “
Best practice on when to advise drafting new will instead of codicil?
Substantive changes
If a testator makes alterations to original will (not in a codicil), will they be valid?
If:
- made before will was executed (may need evi); or
- executed like a will (testator’s and witnesses initials in margin suffice); or
- Obliterates original wording + intention to revoke = revokes
(note: won’t be revoked if conditional revocation rule applies)
If attempt to make alterations to will but invalid, what will the courts do?
Wording must be ____
e.g. replaced wording but not signed
Use wording of original will
provided it is apparent
i.e.
read by ordinary means
e.g. holding to light or magnifying glass - fine. asking solicitor who drew it up/X-Ray - no
Conditional revocation rule
If court finds testator only intended to revoke original words if their substitute words would take effect, revocation will not be valid.
Court will need to try to ascertain what original words would have been.
(bcos substitute words not executed so otherwise invalid)
What should be included at start of will?
Full name and address.
If a testator is planning to marry in the future, what should they do?
State their expectation of marriage and that they do not wish it to revoke the will.
If creating an express trust of the estate, what must a testator do?
Appoint trustees, ideally same as executors.
What are the additional duties of a trustee who is also an executor?
Once done executor duties, will transfer property to be held on trust to self
^ can’t be a trustee if don’t have the property!
How many executors can be named in a will? Explain what is best and when.
No maximum. Minimum of 1.
Little point having more than 4 - as only 4 can apply for a grant of probate.
1 is fine for simple, small estate but risk of predeceasing / unable act.
so ideally 2 or name substitute.
can executor be a beneficiary
yes
e.g. jan
Who can be an executor?
Can they be under 18?
non-professionals (fam friends)
professionals
banks and other trust corporations
They can be under 18 - but won’t be entitled to apply until 18.
Advantages and disadvantages of appointing non-professional executors
:) Testator trusts them
:) Unlikely to want to charge the estate for dealing with it
:( complex estate
:( lack expertise
:( cost of solicitor will be paid for by the estate anyway
benefits / disadvantages of professionals as executor
Expertise
Family and friends spared burden during grief
But paid
How to appoint professional trustees as testator?
Can appoint individual solicitor - but may die or retire
So can appoint firm itself
- if general partnership, appoint the partners (since no SLP anyway)
Specify partners at date of death (otherwise will be those at date of execution and may have died/retired)
Indicate that if amalgamates/changes name/becomes an LLP, appointing partners in new firm
Usual trust corporation (which acts as executor)?
Banks
Advantages and disadvantages of executor being banks or other trust corps
Expertise
Won’t die or retire
Large / impersonal
Usually charge percentage of the estate
Can trustees or executors charge for services?
What can they always recover?
No - fiduciary / unable profit unless authorised.
Can recover expenses.
But can recover reasonable remuneration if:
- trust corporation; or
- professional trustee
^ under that, prof trustee:
- need CONSENT any co-trustees.
- SOLE prof trustee unable recover
BUT if got charging clause, doesn’t matter if professional or co-trustees don’t consent.
What should a testator with infant children be sure to contain in will?
Clause stating who their appointed guardians would be if both died
How could you prevent ademption of something which may be sold or replaced?
e.g. want her to have my house. currently the vicarage.
Use more general wording
e.g. not The Vicarage but “my house at time of death”
What should testator do if inviting beneficiaries to pick their items from the estate?
Order for choosing
Means for resolving any dispute
^ Usually say decision of executors final
Impose time limit
Considerations when gifting minors
Whether wish to make a contingent or vested (no conditions/outright) gift.
OUTRIGHT (ie vested)
- held on trust
- unless will says otherwise, aprents can give good receipt and hold as trustees until bday
- could allow child good receipt if over 16
Contingent
- need to appoint a trustee
If intestacy, need 2 administrators.
If die before reaching conditions under contingent trust, what happens to the gift?
Does not go to the beneficiary’s estate and instead goes to testator’s residue estate.
What should solicitor state if gift to a charity in will?
Address / charity number
Receipt from treasurer or other proper officer accepted
(otherwise need signed all members)
Gift is to body for ‘its general charitable purpose’
(if body dissolves, shows intention and give to similar charity)
Where is burden of inheritance tax felt like where paid from?
Out of residuary estate
Unless contrary intention
