Wills

Question 1

Under intestacy, does the CP/spouse receive the house held as tenants in common?

Answer 1

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

Question 2

Can a testator sign a will in the presence of only one witness?

Answer 2

No, it is void. unless the second witness comes soon after and acknowledges their signature in front of them

Question 3

Necessities for a valid will

Answer 3

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

Question 4

Does an electronic will count?

Answer 4

Probably not

Question 5

What is the exception to the rule of capacity?

Answer 5

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

Question 6

Comments on intention to sign

Answer 6

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

Question 7

ways to challenge a will (outside presumptions)

Answer 7

1- fraud
2- undue influence
3- threat
4- mistake (but distinguish between actual mistake (omitted) and misunderstanding in relation to legal words (not omitted))

Question 8

Who does a solicitor owe duty of care to when preparing will?

Answer 8

testator and beneficiaries

Question 9

What happens if the family home is worth more than the CP share of entitlement? (under instestacy)

Answer 9

Must pay the difference to the estate

Question 10

Intestacy division rules

Answer 10

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)

Question 11

What happens under intestacy if dead person only had a CP but no issue?

Answer 11

Whole estate passes to CP
No other family can make a claim

Question 12

What happens under intestacy if person dies without CP?

Answer 12

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)

Question 13

Can a court rewrite/modify a will?

Answer 13

No
but it can rectify it

Question 14

When can a court rectify a will

Answer 14

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

Question 15

Would John’s CP be entitled to a gift to John’s wife?

Answer 15

NO

Question 16

General rule of a gift to a witness/witness’ CP or spouse?

Answer 16

Fails

Question 17

Exception to general rule that gift to witness fails

Answer 17

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

Question 18

Does a gift to a beneficiary fail if they later marry one of of the witnesses to the will?

Answer 18

no because they were not married at the time they witnessed

Question 19

What does it mean to say a gift has been adeemed?

Answer 19

Fails because the testator no longer has it

Question 20

What is the effect of codicils on gifts?

Answer 20

“updates” the gift to the date of the codicil

Question 21

How must codicils be executed

Answer 21

in the same way as will - testator and 2 witnesses

Question 22

What happens if a B dies some days after the T?

Answer 22

Gift still takes effect, unless its under intestacy rules (28 day survivor rule)

Question 23

What happens if one of the receivers of a joint gift dies?

Answer 23

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

Question 23

Who gets gift is X killed their father?

Answer 23

X’s issue - treats as if X predeceased testator

Question 23

Exception that gift lapses if B dies?

Answer 23

When the gift is to the issue of the testator (will then go to the remote issue, i.e testator’s grandchildren)

Question 23

How can a will be revoked

Answer 23

1) execution of a later will
2) by marriage/CP
3) by destruction

Question 23

Rule on revocation

Answer 23

testator is allowed to revoke their will at any time, provided they have the capacity to it

Question 24

What is the doctrine of conditional revocation/ dependent relative revocation?

Answer 24

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

Question 24

What are the ways of revocation by later will/codicil?

Answer 24

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)

Question 24

How is a will revoked by destruction?

Answer 24

by proving destruction + intention to revoke

Question 25

What are the elements of destruction in a revocation?

Answer 25

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)

Question 26

Does destruction of a part of the will revoke it?

Answer 26

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)

Question 27

Can someone else destroy a will on behalf of the testator?

Answer 27

only if they have given them clear instructions and are in their presence (testator in the other room would not work)

Question 28

When is a will not revoked by marriage?

Answer 28

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

Question 29

is a will revoked if it is made in contemplation of marriage and the testator does not end up marrying?

Answer 29

no, unless they marry someone else

Question 30

is a will revoked if a CP is turned into a marriage?

Answer 30

No

Question 31

What is a caveat

Answer 31

Entry in HMCTS which prevents grant from being issued until the caveat is removed or ceases from being effective

Question 32

What happens if an executor applies for a grant and there is a caveat

Answer 32

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

Question 33

What is a citation

Answer 33

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’)

Question 34

What are the types of citation

Answer 34

1) citation to take probate
2) citation to propound wil
3) citation to accept or refuse grant

Question 35

When is a citation to take probate used?

Answer 35

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

Question 36

When is a citation to propound wil used?

Answer 36

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

Question 37

what is a citation to accept or refuse grant?

Answer 37

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

Question 38

when is a passing over order used?

Answer 38

** need to apply to court
often better than forcing someone to be an executor if they dont want to

Question 39

main difference between B of estate (will) and B of trust?

Answer 39

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)