Wills Flashcards
Under intestacy, does the CP/spouse receive the house held as tenants in common?
no
it needs to request the PRs to appropriate it in full or partial satisfaction of their interest in the estate
Only possible if they were living in it at the moment and if they exercise their right within 12 months of the grant of representation
Can a testator sign a will in the presence of only one witness?
No, it is void. unless the second witness comes soon after and acknowledges their signature in front of them
Necessities for a valid will
1- capacity (over 18 and sound mind, capable to understand the nature and scope of their acts, extent of their property and any moral claims)
2- intention (general intention to make a will and specific intention to make this will - knowledge and approval)
3- s9 clause in will
Does an electronic will count?
Probably not
What is the exception to the rule of capacity?
Parker v Felgate
As long as the testator had mental capacity to give instructions and understood he was sining a will he had previously given instructions to, it’s fine if they no longer have capacity by the time its executed
OR
can create a statutory will under MCA
Comments on intention to sign
Testator must know its signing its will and must have intention (eg just writing their name on the envelope is not enough)
Could potentially sign with ‘your loving mother’ as long as it represents their identity
ways to challenge a will (outside presumptions)
1- fraud
2- undue influence
3- threat
4- mistake (but distinguish between actual mistake (omitted) and misunderstanding in relation to legal words (not omitted))
Who does a solicitor owe duty of care to when preparing will?
testator and beneficiaries
What happens if the family home is worth more than the CP share of entitlement? (under instestacy)
Must pay the difference to the estate
Intestacy division rules
1- personal chattels to CP
2- rest of estate to CP up to 322,000 statutory limit
3- rest of estate divided between CP and others in line (children)
What happens under intestacy if dead person only had a CP but no issue?
Whole estate passes to CP
No other family can make a claim
What happens under intestacy if person dies without CP?
1 - issue
2 - parents
3- brothers and sis
4- brothers and sis half-blood
5- grandparents
6 - uncles and aunts
7- uncles and aunts half blood
8- crown (bona vacantia)
(all or nothing basis)
Can a court rewrite/modify a will?
No
but it can rectify it
When can a court rectify a will
When the will fails to carry out the testator’s intention (which are clear) due to either a clerical error or a failure to understand instructions
Would John’s CP be entitled to a gift to John’s wife?
NO
General rule of a gift to a witness/witness’ CP or spouse?
Fails
Exception to general rule that gift to witness fails
Won’t fail if there were 3 witnesses to the will (and thus the beneficiary witness can be involved) OR if there was a codicil which confirms the original will and is not witness by the beneficiary/their CP/spouse
Does a gift to a beneficiary fail if they later marry one of of the witnesses to the will?
no because they were not married at the time they witnessed
What does it mean to say a gift has been adeemed?
Fails because the testator no longer has it
What is the effect of codicils on gifts?
“updates” the gift to the date of the codicil
How must codicils be executed
in the same way as will - testator and 2 witnesses
What happens if a B dies some days after the T?
Gift still takes effect, unless its under intestacy rules (28 day survivor rule)
What happens if one of the receivers of a joint gift dies?
The full gift passes to the surviving beneficiary, UNELSS there was intention of severance (eg ‘equal shares to A and B’ = if A dies, B only gets half shares)
if a gift is to a class of beneficiary, won’t lapse until they ALL die
Who gets gift is X killed their father?
X’s issue - treats as if X predeceased testator
Exception that gift lapses if B dies?
When the gift is to the issue of the testator (will then go to the remote issue, i.e testator’s grandchildren)
How can a will be revoked
1) execution of a later will
2) by marriage/CP
3) by destruction
Rule on revocation
testator is allowed to revoke their will at any time, provided they have the capacity to it
What is the doctrine of conditional revocation/ dependent relative revocation?
Stipulates that when a will has an express revocation clauses based on a specific event happening (eg new will being drafted), if that new event doesn’t happen, the revocation clause is invalid and the original will is still valid
What are the ways of revocation by later will/codicil?
1- express revocation clause in future will
2- if no revocation clause:
a) complete revocation: when 2 wills are totally incompatible, making it clear the latter one revokes the first
b) partial revocation: when the 2 wills are not totally incompatible, they are read together
3- express revocation clause contingent on a future event happening (doctrine of conditional revocation/ dependent relative revocation)
How is a will revoked by destruction?
by proving destruction + intention to revoke
What are the elements of destruction in a revocation?
needs to be physical (totally blacking out something, burning, tearing apart - simply writing ‘this is revoked’ and smushing it won’t be physical destruction) (although, if signature is destroyed, there might be an argument to say will is no longer valid)
Does destruction of a part of the will revoke it?
Usually no, unless that part is significant and substantial to the remainder of the will (the test is whether the remainder of the will is still legible and can operate in the absence of destroyed part)
Will only revoke the part destroyed (eg a clause crossed out)
Can someone else destroy a will on behalf of the testator?
only if they have given them clear instructions and are in their presence (testator in the other room would not work)
When is a will not revoked by marriage?
1- when it is clear the will was made in expectation of THAT particular forthcoming marriage with THAT PARTICULAR PERSON
2- when it is clear the testator did not intend for the will to be revoked upon marriage
both elements must be evident from the will.Essentially this requires the will to recite the
fact of the expected marriage with the particular person and a wish that the will is not to be
revoked.
OR when a CP is turned into a marriage
is a will revoked if it is made in contemplation of marriage and the testator does not end up marrying?
no, unless they marry someone else
is a will revoked if a CP is turned into a marriage?
No
What is a caveat
Entry in HMCTS which prevents grant from being issued until the caveat is removed or ceases from being effective
What happens if an executor applies for a grant and there is a caveat
The caveator is notified and has 14 days to respond/set out their interest
If they fail to do so the grant can be issued
What is a citation
a method forcing a party with a right to the grant to act (either renounce or take it - because until they have renounced it the issue of grant to a new person is ‘blocked’)
What are the types of citation
1) citation to take probate
2) citation to propound wil
3) citation to accept or refuse grant
When is a citation to take probate used?
When the executor has already interemeddled in the estate but has not applied for the grant and shows no intention of doing so.
They can be forced to apply for grant, unless there is a good reason not to.
Citor can apply to court to get a letters of admin with will anexxed
When is a citation to propound wil used?
when person becomes aware theres a will that might diminish their interest, can apply to have that will set aside if citee makes no noise
what is a citation to accept or refuse grant?
standard method of clearing off person with priority right to any type of grant who has not applied and shows no intention to do s
- citator can apply to have grant issued in their name
when is a passing over order used?
** need to apply to court
often better than forcing someone to be an executor if they dont want to
main difference between B of estate (will) and B of trust?
B of estate has no equitable right/interest in the property until PRs have transferred it to them (the legal and equitable rights remain vested in PRs)
