Wills

Question 1

What does testamentary capacity mean?

Answer 1

Mental capacity and intention to make a will

Question 2

What must testator understand to have capacity?

Answer 2

• Nature of their act (making a will)
• Extent of their property
• Who a testator would normally give gifts to.

Question 3

What proof is needed for mental capacity?

Answer 3

Testator presumed to have necessary mental capacity unless someone challenging it can point to a lack of capacity

Question 4

What happens if will made under duress or undue influence?

Answer 4

Will is not regarded as the act of the testator and entire will fails and will not be admitted to probate

Question 5

What is duress when making a will?

Answer 5

Will issued due to force or fear of injury

Question 6

What is undue influence when making a will?

Answer 6

If influence overpowers the testator’s volition (beyond mere persuasion)

Question 7

Formal requirements for a will to be validly executed?

Answer 7

• in writing
• signed by the testator (or someone in the testator’s presence who the testator has directed to sign on their behalf) – a mark intended as a signature may be sufficient
• signed by the testator in the presence of two or more witnesses – witnesses don’t need to read the will or know they are witnessing a will
• signed by each witness in the presence of the testator (but not necessarily in the presence of the other witness)

Question 8

Purpose of an attestation clause?

Answer 8

If no attestation clause proof must be offered that formal requirements of wills met.

Question 9

What is this “signed by the testator in our presence and then by us in his”

Answer 9

Example attestation clause

Question 10

Requirements for other documents to be included with will?

Answer 10

Will identifies the document, it must exist at the date of the will and be referred to as existing

Question 11

Consequences of validly identifying another document in a will?

Answer 11

Document effectively becomes part of the will

Question 12

Effect of including a future intention to make a list, schedule or memorandum?

Answer 12

Does not become part of the will

Question 13

What is the difference between executors and administrators?

Answer 13

Executors administer estates under wills and administrators administer intestate estates.

Question 14

How does testator appoint an executor?

Answer 14

Name them in the will

Question 15

Effect of divorce on a will?

Answer 15

The spouse treated as if they had died - includes if appointed as executor.

Question 16

How does someone named as executor accept office?

Answer 16

By taking a grant of probate or by intermeddling (doing something that shows they’ve accepted office, could be as small as notifying deceased’s bank of their death)

Question 17

How does someone named as executor decline acting?

Answer 17

Can renounce their right if haven’t already accepted the office

Question 18

Is the role of executor all or nothing?

Answer 18

Yes - can’t accept some and renounce others

Question 19

Process for renouncing acting as an executor?

Answer 19

Renunciations must be filed at the Probate Registry – usually by another person seeking grant of probate.

Question 20

What effect does renunciation of executor appointment have on trusteeship?

Answer 20

No affect

Question 21

What is the purpose of reservation of power by executor?

Answer 21

An executor who doesn’t wish to act can have power reserved – means won’t be involved for now but if the circumstances change they can apply for a grant of probate at a later stage

Question 22

How can prove an alteration was made before execution?

Answer 22

Statements from the witnesses or the initials of the testator and their witnesses next to the alteration, provided the will reads naturally after the amendment.

Question 23

How should amendments to a will be made after execution?

Answer 23

change must be witnessed in the same manner as an entire will is witnessed

Question 24

Presumption on unattested alterations on a will?

Answer 24

Are assumed to have been made after execution unless was filling in a blank (such as name etc.)

Question 25

What is a codicil?

Answer 25

a separate document which refers to the will and is executed like one. Codicils were popular when wills were handwritten and long.

Question 26

How can codicils be used?

Answer 26

To amend or partially revoke a will

Question 27

What are the methods of revocation?

Answer 27

* Marriage automatically revokes will, unless it appears from the will that when it was made the testator was expecting to marry a particular person and they intended all or part of the will not be revoked. * Divorce the law treats the former spouse as having died on the date of the divorce. * Destruction of will by burning, tearing or destroying. * A new will revokes an earlier will to the extent it’s inconsistent with the earlier will (often include clause in will to ensure previous wills are revoked to prevent this).

Question 28

Conditions for revoking by destroying a will?

Answer 28

o Must be by the testator or someone acting at their direction and in their presence o Testator must have the intention to revoke at time of destruction o If a will found destroyed after the death will be presumed testator did so with intention to revoke unless evidence to the contrary o Destroyed will might be given effect if proved that destruction was contingent on a future event that didn’t occur for example destroyed intending to make a new one but wasn’t able to.

Question 29

What are the 4 categories of gifts?

Answer 29

1. Specific legacy – e.g. “my engagement ring” 2. General legacy – eg “a Fiat 500” rather than my 3. Pecuniary legacy – gift of cash 4. Residuary legacy – gift of everything left in estate after giving the other gifts and paying expense of administrating the estate

Question 30

What happens if Specific legacy isn't in the estate?

Answer 30

the gift fails and the named beneficiary doesn’t take anything under the gift

Question 31

What happens if General legacy isn't in the estate?

Answer 31

personal representative will use estate funds (if sufficient) to purchase the item

Question 32

When will a class of beneficiaries close to new members?

Answer 32

the moment any members of the class satisfies the condition. This means no new members can be added but anyone who is alive and within the class will share in the gift if they eventually satisfy the condition. E.g. gift to someone’s children when reach a specified age.

Question 33

What happens if the beneficiary dies before the testator?

Answer 33

The gift will fail. 1. If an alternative isn’t named on the will it falls into the residue. 2. If the residuary gift lapses as beneficiary dies then the residuary passes through the laws of intestacy.

Question 34

What is the exception for gifts failing when a beneficiary dies before the testator?

Answer 34

if gift was made to the issue of the testator (child, grandchild, great grandchild) and that beneficiary dies before the testator but leaves living issue then the gift doesn’t lapse and will go to the living issue instead.

Question 35

What is intestacy?

Answer 35

Statutory method of distributing assets not disposed of under the will (includes if will failed to give away all of their property for example if residuary gift failed)

Question 36

What are the intestacy rules when spouse and no issue?

Answer 36

Spouse entitled to all property, (note under intestacy rules spouse must survive at least 28 days to take).

Question 37

What are the intestacy rules when spouse and issue?

Answer 37

Spouse takes: * all tangible moveable property (other than money, investment property such as stocks and property used for business) * £322,000 * Half of remaining property Children split the rest.

Question 38

What order does property pass under the intestacy rules when no spouse?

Answer 38

Property passes in following order: 1. To children (if child predeceases the decedent but have their own issue the issue will take on trust and split their parent’s share) 2. To parents 3. To full siblings 4. To half siblings 5. To grandparents 6. To aunts and uncles 7. To the Crown

Question 39

What happens to the house under the intestacy rules?

Answer 39

Spouse can require the personal representative to give them the couples matrimonial home in partial or total satisfaction of their interest (if home worth more than their share will have to pay the difference).

Question 40

What property passes outside the estate?

Answer 40

* Joint property - passes to joint tenant(s) * Life policies – passes to beneficiary named in the policy under contract law * Pension scheme benefits – can nominate someone to take property so will pass to them * Trust property – passes according to terms of the trust fund.

Question 41

What should do if testator aged or suffered a serious illness?

Answer 41

Can have a medical practitioner to examine testator to satisfy that testator has capacity and record this

Question 42

Where is the burden of proof when allegation of duress or undue influence?

Answer 42

Person making allegation

Question 43

What steps can solicitor to ensure a will is validly executed?

Answer 43

* Ideally execute in office, if not send detailed letter of instruction to the client * If executed elsewhere ask client to send will back after executing it so can check it

Question 44

Are codicils interpreted widely or narrowly?

Answer 44

Interpreted as far as possible to allow the admission of both the will and the codicil

Question 45

What does Section 46 of The Administration of Estates Act 1925 outline?

Answer 45

Rules for distribution of property under intestacy rules

Question 46

What statute contains intestacy rules?

Answer 46

Section 46 of The Administration of Estates Act 1925

Question 47

What do the statutory trusts provide for in intestacy rules?

Answer 47

Enable the issue of a deceased child of the intestate to be entitled to a share as if all the intestate’s children were living at the intestates death. The issue of the deceased child must reach 18 or marry to inherit.