Wills Flashcards
What must be present for a will to be valid?
- A testator must be aged 18 or over (s7 Wills Act 1837) to make a valid will, with exceptions for those in military service, and satisfy all of the following legal requirements:
- To make a valid will the testator must have testamentary capacity, know and approve of the contents of the will and comply with s.9 Wills Act 1837
- To make a valid will no specific wording or form is required and a testator (person who makes a will) can leave their property to whomever they choose (known as testamentary freedom).
- Following Banks v Goodfellow a testator will have testamentary capacity if they:
Understand the nature of the act
Appreciate the extent of their property
Are aware of moral claims against their estate
Testamentary capacity must be present at execution (unless the rule in Parker v Felgate applies)
Testamentary capacity is presumed where the will is rational and has been duly executed
Case for test for testmentary capacity?
Banks v Goodfellow
- Testamentary capacity
- A testator must be mentally capable of making a will, referred to as ‘testamentary capacity’.
Nature of the act meaning in the test for testamentary capacity?
- A testator must understand that they are signing a document that takes effect on death and disposes of their property.
- A testator should be able to understand the broad effects of the will but is not required to understand every detail.
- ‘Extent of Property’ meaning in the test for testamentary capacity?
- A testator should have a general recollection of what they own and appreciate the approximate value of their estate and relative value of its assets.
- A testator is not required to recall every item or know the precise value of each.
- The test is one of general understanding rather than perfect memory.
How does ‘Disorder of the mind’ affect testamentary capacity?
- A testator suffering from insane delusions, affecting their judgement generally or in relation to specific dispositions in the will, lacks testamentary capacity.
- A testator may be suffering from an insane delusion and still have testamentary capacity provided that delusion is unconnected with and has no effect on the terms of the will.
- Timing Requirements for testamentary capacity?
- A testator must have testamentary capacity at the time the will is executed.
- However, a limited exception to this timing requirement was established by Parker v Felgate,
Parker v Felgate exception?
a testator who lacks testamentary capacity at the time of execution can still make a valid will provided they:
Had testamentary capacity at the time they gave instructions for the preparation of the will; and
The will was prepared in accordance with those instructions; and
At the time of execution the testator understood they were signing a will for which they had previously given instructions.
* This exception may apply where a testator’s testamentary capacity fluctuates over time (usually as a result of illness), or, an unexpected event occurs between giving instructions and executing the will which means a person no longer satisfies the test.
What can affect testamentary capacity?
- A testator may have intermittent capacity; for example someone with dementia may have ‘lucid’ days on which it would be possible to satisfy the test for testamentary capacity and other days not.
- A testator may temporarily lack capacity as a consequence of a particular life event. In Key v Key the testator’s wife died a week before he made his will and the testator was found to lack capacity due to the effect of grief on his mental state.
- The effect of depression and other mental health conditions which may affect the decision making abilities of a testator should be taken into account when assessing their testamentary capacity.
- Golden Rule?
A solicitor preparing a will for a testator whose
mental state is in doubt (possibly due to age or ill health) should follow the ‘golden rule’
The solicitor should ask a
medical practitioner to provide a written report confirming that the testator has testamentary
capacity and also ask the doctor to witness the will. The solicitor should record their own view
of the testator’s capacity in a file note. The written evidence should be kept on the file in case
someone challenges the validity of the will after the testator’s death.
Burden of proof for testamentary capacity?
- The burden of proof of capacity technically lies with the propounder of the will (person seeking to admit the will to probate, usually the executor). However, capacity is presumed if the will on the face of it appears rational and has been duly executed.
- Anyone who wishes to challenge the validity of the will on the grounds of lack of capacity must provide evidence sufficient to raise doubt. If such evidence is provided the presumption is rebutted and the burden of proof reverts to the propounder of the will to demonstrate the testator satisfied the Banks v Goodfellow test.
- The threshold to satisfy the test in Banks v Goodfellow is relatively low. A person may lack the ability to manage their own affairs and require help with day-to-day activities and still have testamentary capacity to make a will.
What should a solicitor do if a client lacks testamentary capacity?
- If a client lacks testamentary capacity they cannot make a valid will and a solicitor should not accept their instructions for the preparation of a will.
Statutory wills?
, it is possible for the court to authorise the execution of a will on behalf of an adult who lacks capacity to make one for themselves (s.18(1) CA 2005). The court must be persuaded there are grounds to diverge from the existing testamentary position and it is in the person’s best interests to do so.
* This could be because the person has never made a will and the intestacy rules would otherwise apply, or because a change in circumstance means it is likely the testator would have reviewed his current position.
When is knowledge and approval assumed?
o Knowledge and approval is presumed where the testator has testamentary capacity unless the testator is blind, illiterate, someone signs on their behalf or there are suspicious circumstances.
- Knowledge and approval meaning for a vlaid will?
o A testator must have a general intention to make a testamentary document which disposes of their property and should take effect following their death.
o A testator is also required to have a specific intention to make the particular will they sign. This means they must know and approve of its contents and understand the choices they have made. It is possible to satisfy the test for testamentary capacity but lack knowledge and approval.
o Practically, a testator must read their will and understand it, and by their signature intend to give effect to its terms.
o Similarly to testamentary capacity, knowledge and approval must be present at the time of execution, unless the exception in Parker v Felgate applies.
When is an affadavit of knowledge and approval used?
o If there is no presumption of knowledge and approval, and the attestation clause (which explains the circumstances under which the will was executed) does not address this, an affidavit of knowledge and approval would be needed when submitting the will to probate.
What happens if the will was made as a result of undue influence or duress?
it will not be valid because the will does not reflect the testator’s true intention.
To what extent can undue influemnce render a will invalid?
o A testator may have been unduly influenced in respect of a particular gift within the will or the will as a whole.
o Where the whole of the will was made as a result of undue influence with will is invalid. Where part of a will was made as a result of undue influence, the remainder may be given effect to provided that the omissions do not “upset the whole tenor of what remains”, but the court cannot add or substitute words.
What is required for undue influence?
Undue influence occurs where a testator is coerced into making a will, or including particular terms, against their judgement and contrary to their true intention. The testator does not genuinely exercise choice but has surrendered to pressures they were not able to withstand.
Undue influence goes beyond persuasion. It is not unlawful to encourage someone to make a will or persuade them that certain provisions should be included e.g. by appealing to “ties off affection” or “pity for future destitution”. With persuasion the testator’s judgement is ‘convinced’.
* Coercion – not just persuasion
Is there a presumption of undue influence?
There is no presumption of undue influence in relation to testamentary dispositions (which differs to lifetime arrangements) and whether undue influence has occurred is a question of fact.
* Must have evidence to prove this
Who has the burden of proof for undue influence?
The burden of proving undue influence lies with the person making the allegation and the court requires evidence
What does the court consider for establishing undue influence?
The physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will. A weak or ill testator may be more susceptible and for the sake of a quiet life may be induced to do anything.
Whether or not the court considers the testator’s will to be fair is irrelevant. The question is whether, in executing the will, the testator acted “as a free agent”.
requirements of s.9 Wills Act 1837?
it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
it appears that the testator intended by his signature to give effect to the will; and
the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
each witness either
* attests and signs the will; or
* acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
it is in writing, - Includes handwritten and typed/printed text in any language
and signed by the testator, - Any ‘mark’ may constitute a ‘signature’ if the testator intends it to be, but it is preferable for a testator to use their normal signature to avoid doubt
or by some other person in his presence and by his direction - This could apply e.g. if a testator is physically unable to sign themselves and authorises another person to sign on their behalf
o b) it appears that the testator intended by his signature to give effect to the will - Where the signature is at the end of a will it usually indicates the necessary intention. Signatures at the beginning or in the middle of the will can be problematic.
the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time - A testator either signs in person or acknowledges the signature of the person who signed on their behalf. Two is the minimum - there is no maximum.
o Witnesses must be physically and mentally present but do not need to know a will is being signed or its terms. A minor, someone who is blind, drunk or of unsound mind should not act.
o The full name, addresses and occupation of each witness should be noted in case the will is challenged at a later date and they are required to give evidence (in an affidavit) of what happened at execution or the testator’s mental state.
each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness) - Both witnesses must sign the will in front of the testator, but it is not necessary for each witness to also sign in front of each other
o To comply with s. 9 the will must be in writing and signed by the testator (or by someone else on his behalf)
o The testator’s signature must be made or acknowledged in the presence of two adult witnesses with capacity
o The witnesses must each sign the will in the presence of the testator but not necessarily in the presence of each other
attestation clause in a will?
describes the circumstances under which the will was signed.
Section 15 Wills Act 1837
What happens if a beneficiary (or their spouse/civil partner) acts as a witness to a will?
o If a beneficiary (or their spouse/civil partner) acts as a witness the will as a testamentary document remains valid but under s.15 Wills Act 1837 the gift to the beneficiary is void
Is there a legal obligation to include an attestation clause?
o There is no legal obligation to include an attestation clause nor is any specific form of attestation required.
Consequences of a properly drafted attestation clause?
a properly drafted attestation clause raises a presumption that the will was executed in accordance with the requirements of s 9 WA (a presumption of due execution).
What happens if a will is signed in special circumstances?
o If the will is executed in special circumstances (e.g. will is signed on behalf of the testator, or, the testator is blind or illiterate) the attestation clause should be amended to reflect these special circumstances and to provide evidence of the requisite knowledge and approval. The example below could be used where a testator cannot read the will.
o Signed by the above named [testator] in our joint presence and then by us in his/hers all signatures having been added after this document had been read to [testator] by [name] when [testator] seemed thoroughly to understand and approve its contents.
Who is a beneficiary in a will?
A beneficiary is anyone who gains any benefit under the will.
Consequeces of a beneficiary witnessing the will?
o The will remains valid but a solicitor may be negligent if they do not provide advice on the effect of s 15.
o If a professional executor (who is entitled to charge for their services) witnesses a will, s 28(4)(a) Trustee Act 2000 confirms s 15 will not apply to the remuneration the professional executor will receive for acting in this role.
o The appointment of the beneficiary as an executor remains effective even if s 15 applies to deny them their inheritance.
When can s.15 (beneficiary witnessing a will) be disregarded?
o If there are at least two other witnesses not caught by s 15, or if the will is subsequently confirmed by a properly executed codicil, the effect of s 15 can be disregarded; the will would be properly executed without the beneficiary (or their spouse) witnessing the will.
What does a codicil do?
A properly executed codicil has the effect of republishing the existing will. Republication
confirms the will and causes the will to take effect as if made at the same time as the codicil,
but incorporating any changes made by the codicil.
To be valid, a codicil must meet certain requirements….
Same as will
Where a testator with capacity appears to have known and approved the contents of the will,
any person who wishes to challenge the will (or any part of it) must prove one or more of the
following to prevent some or all of the will from being admitted to probate:
*
Force or fear (through actual or threatened injury), or
*
Fraud (eg after being misled by some pretence), or
*
Undue influence (where the testator’s freedom of choice was overcome by intolerable
pressure, but their judgement remained unconvinced). Undue influence in the context
of wills means coercion or duress. Persuasion stopping short of coercion is not undue
influence.
How does mistake affect the presumption of knowledge and approval?
The presumption of knowledge and approval does not apply if all or part of the will was
included by mistake. Any words included without the knowledge and approval of the
testator will be omitted from probate. In this respect, it is important to distinguish between
actual mistake (ie absence of knowledge and approval) and misunderstanding as to the
true legal meaning of words used in the will. In the latter case mistaken words will not be
omitted.
What is required for a will that has been made under duress, i.e. as a result of force and fear, to be valid?
Court must pronounce that it is valid, and issue a grant in solemn form
What can occur where an omission from a will is made under duress?
The disappointed beneficiary can be entitled to the gift on the basis of the earlier will.
Duress is deemed to invalidate the revocation and the new will is read in line with that earlier valid provision.
Who has the burden of showing the testator did not have intention, and how might they show this?
The person challenging their intention, and they may do so by showing the testator acted due to fear, fraud, undue influence, or mistake
Who can act as an administrator?
- Any adult with capacity may be appointed and act as executor
Minimum and maximum number of executors?
- A minimum of one executor is required and a maximum of four can be named on the grand of probate
What is an executor?
- An executor is a PR appointed by will.
What is an administrator?
- An administrator is a PR appointed under the Non-Contentious Probates Rules 1987 (‘NCPR’).
Where do executors derive their authority from?
their authority to act derives from the will.
When is grant of probate needed?
Grant of Probate: This grant will be needed if the deceased left a valid will which appoints executors who are going to act.
- Entitlement to grant of probate?
- The entitlement to act as executor derives from the appointment under the will. Only those named may take out the grant and they cannot simply give that right to someone else. However, a named executor may formally appoint someone to act on their behalf under a power of attorney.
- If the appointment of an executor under the will is limited e.g. to specific assets, jurisdiction or by time, then this will be reflected in the authority conferred by the grant.
- An executor named in a will is unable to act as PR if they
pre-deceased the testator (or survived but died before taking out the grant). The will may expressly appoint a substitute executor to act in their place. *
are a minor. Although a minor cannot act as PR, their appointment by will is valid. Power can be reserved to the minor who, on reaching the age of 18, can make an application later if the administration remains incomplete. *
lack capacity *
are the testator’s former spouse/civil partner and the divorce/dissolution took place after the will was made. By s.18A/C Wills Act 1837 the former spouse/civil partner is treated as having pre-deceased the testator and therefore cannot be appointed (unless the will expressly overrides the effect of s.18A/C).
- If an executor is unable to act, the remaining executor(s) can still apply for the grant of probate but will need to explain to the probate registry why all of those appointed by the will are not applying.
How many executors do you need?
- Only one executor is required, but for practical reasons it is common for at least two to be appointed.
- If more than one executor is appointed, but not all of them will apply for the grant of probate, e.g. if one of them has pre-deceased, the remaining executor(s) may continue with the application. However, they will need to explain to the probate registry why not all of those named are applying e.g. by providing a copy of the death certificate.
- The testator may appoint as many executors as he likes in the will but a maximum of four people can be named on the grant. If more than four are appointed in the will they must decide who is to take out the grant.
What does power reserved mean?
- Power can be reserved to any remaining executors, which means they would be able to apply at a later date if vacancy arose and the administration remained incomplete. In this case, they would apply for a grant of double probate.
What happens if a grant has been taken out and one of the PRs appointed dies before the administration is complete?
-
If no PR remains: Following the death of the sole/last surviving PR, what happens depends on the estate being administered. Either: *
Chain of representation applies, or *
Grant of letters of administration de bonis non is issued - The chain of representation will apply if the last surviving executor (E1) dies having appointed an executor of their own estate and this person takes out the grant probate for E1’s estate (E2). S.7 AEA 1925 provides that E2 automatically becomes executor of the original testator’s estate as well as being executor for E1’s estate. No additional grant is required.
- S.7 does not operate where administrators are acting.
- If the chain of representation cannot operate a second grant will be issued - a grant of letters of administration de bonis non.
- Three requirements must be satisfied: *
the administration is incomplete; *
there are no remaining personal representatives; and *
there has been a previous grant of representation.
An unwilling executor may
renounce probate (unless they have intermeddled), have power reserved (provided another executor takes out the grant) or may appoint an attorney.
- Renunciation?
- An executor may formally renounce (give up) their right to apply for probate and the administration continues as though they had not been appointed.
- Renunciation is final and the executor cannot later change their mind without court approval.
When can an executor not renounce?
- An executor cannot renounce if they have intermeddled with the estate and the court will not accept an attempt to renounce.
What must an executor do for renounciation?
- The executor must sign a form of renunciation
- Those who are applying for the grant must submit the form of renunciation to the probate registry as evidence of why an executor appointed by the will is not making the application.
- The renunciation will be noted on the grant when it is issued
- Renunciation is final and the executor cannot later change their mind without court approval.
- What is intermeddling?
- A person intermeddles when they take steps indicating they have ‘accepted their appointment’ and are fulfilling the duty to administer the estate (even if they do not in fact wish to act as executor). Examples include:
“Obtaining, receiving or holding” the deceased’s assets, or forgiving any debt or liability due to the estate (s 28 Administration of Estates Act 1925)
Paying debts, selling assets, disposing of personal property (under common law)
Acts of common humanity such as arranging a funeral or taking steps to secure the estate assets do not amount to intermeddling.
Requirements for reserving power?
- To reserve power there must be at least one other executor who does take out the grant of probate. The power ‘reserved’ is to apply for the same grant as originally issued i.e. there must be an original grant of probate.
The executor taking out the grant must give notice to the other executor that they are making the application without the executor who is reserving power
When is applyiing for a grant of double probate appropriate?
- Applying for a grant of double probate is only appropriate if the administration is not yet complete.
Rule 27 NCPR?
where power is reserved to an executor, the executor(s) who are applying for probate must give notice of their intention to apply to the executor to whom power is reserved. The reservation of power will be noted on the grant.
Executor appointing an attorney?
- An executor who does not want to be directly involved in the administration may appoint another person as attorney to act on their behalf. The power may be given by the executor (donor) to the attorney (donee):
- After the executor has obtained a grant: s 25 Trustee Act 1925 confirms that a PR may delegate their functions to an attorney for a maximum of 12 months. This can be renewed if needed. Notice should be given to the other executors. Once appointed the attorney can carry out administrative steps on behalf of the donor.
- Before a grant has been obtained: in this case the executor is delegating the power to apply for a grant. As the attorney is not named in the will as executor they cannot apply for a grant of probate. Instead, if other executors are applying, the executors would apply for a grant of probate and the attorney would make a parallel application for letters of administration (with will).
- The power of attorney must be provided to the probate registry as part of the application.
All executors unable or unwilling to act?
- If there is no executor who is able or willing to act then a grant of probate cannot be issued.
a person cannot act as administrator if they:
* Pre-deceased the testator or survived the testator but died before taking out the grant (although in some cases their PR may act)
* are a minor (unless an application is made on their behalf)
* lack capacity
* do not have a beneficial entitlement to the estate (for appointments under NCPR 22 only)
- If a potential administrator does not wish to act they have a number of options:
* Renunciation
* Appointing an attorney
* Note that unlike an executor, an administrator cannot ‘reserve power’.
How can a potential administrator renounce?
- A form of renunciation must be signed and submitted to the probate registry with the application for the grant. The renunciation will be noted on the grant.
- A potential administrator may renounce at any time before the grant is issued. They are not prevented from renouncing even if they have intermeddled with the estate.
- An executor who renounces their right to apply for a grant of probate, does not automatically renounce their right to apply as administrator under NCPR 20/22 so they may may need to renounce both rights.
When can an administrator appoint an attorney?
- The power may be given by the administrator (donor) to the attorney (donee):
- After the administrator has been appointed under the grant: s.25 Trustee Act 1925 confirms that a PR may delegate their functions to an attorney for a maximum of 12 months. This can be renewed if needed. Notice should be given to the other administrators. Once appointed the attorney can carry out administrative steps on behalf of the donor.
- Before a grant has been obtained: in this case the applicant is delegating the power to apply for a grant, which is permitted under Rule 33 NCPR. The power of attorney must be provided to the probate registry as part of the application.
what happens if those entitled to apply refuse to act but also refuse to renounce their right to apply? Or, what if an executor intermeddles in the estate (and is thus unable to renounce) but refuses to apply for the grant?
In these situations, it is possible to obtain a court direction (using the citation process) to:
* * Require a person to take out a grant
* * Remove their right to apply
* * Authorise another person to take on the administration
How can an administrator renounce?
Any person entitled to apply for a grant of letters of administration with will annexed can
renounce in the same way as an executor (though using a Form PA16), except that an
administrator does not lose the right to renounce by intermeddling. Renunciation does not
affect any beneficial entitlement of the administrator or any appointment as a trustee.
A person entitled to a grant under NCPR 1987, r 22 can renounce his right to the grant in
the same way as an administrator with the will annexed. Renunciation does not affect any
beneficial entitlement of the administrator.
- A will may be revoked by:
- Destruction by the testator of the original with an intention to revoke
- Destruction by a third party if at the testator’s direction and in their presence
- An express revocation clause included in a later will
- Express wording in a codicil
- Implication if a later will or codicil contain no express words of revocation – but the earlier will is only revoked to the extent it is inconsistent with the later will or codicil
- Presumption if the original document is missing
- Lacking a revocation clause does not mean it is not a valid will but makes it confusing
What happens if a testator signed a mutual will?
- If a testator has signed a mutual will their property will be subject to a constructive trust should they attempt to revoke or change that will at a later date. There is no obligation to avoid revocation where a couple make mirror wills.
Requirements for destroying a will?
- By s 20 Wills Act 1837 a will may be revoked by the testator:
- ‘burning, tearing or otherwise destroying’ it
- provided there is also an intention to revoke the will.
- The intention to revoke may be:
- absolute (in which case the revocation is effective immediately)
- or
- conditional (for example on getting divorced) in which case the revocation will not be effective until the condition is satisfied.
What happens if a will is destroyed by someone who does not have capacity?
- Complete destruction of the original will by a testator who lacks capacity or intention is not effective and the will remains valid. Affidavit evidence would be required for a copy of the will to be admitted to probate.
Must the original will be destroyed for the will to be validly destructed?
- The original will must be destroyed rather than a copy.
When is someone else destroying the will effective?
- If another person destroys the will this will not be effective unless it is at the direction of the testator and in his presence.
Partial destruction?
- If a testator does not destroy all parts of the will the effect depends on the parts that remain. The destruction is partial if the will can operate effectively with the sections that remain. If not, the whole of the will is effectively revoked. For example, if the attestation pages are destroyed including the testator’s signature.
What happens if a will is missing or damaged?
- There are presumptions as to revocation that arise where a will is missing or damaged.
- If a testator is known to have made a will or codicil which they kept in their possession, but after the testator’s death the original document is: Missing?
- Missing - the testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise (Patten v Poulton)
- If a testator is known to have made a will or codicil which they kept in their possession, but after the testator’s death the original document is: - Damaged?
- Damaged - the testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise
- Those administering the estate of the deceased when the will is missing or damaged will have the burden of rebutting a presumption of revocation by showing:
- -a valid will existed when the deceased died but was lost/damaged after death
- -the deceased did not intend to revoke their will
- -the deceased did not carry out or give instruction for the act of destruction.
- If sufficient evidence can be provided to rebut the presumption, a copy of the will may be admitted to probate (NCPR 54).
Express Revocation by will?
- An express revocation clause is usually included in every will as standard (even where a testator tells their solicitor they have not made a will before). This ensures that all previous wills are revoked and there is only one valid will at any one time. To be effective express words of revocation are required.
- “I hereby declare this to be my last will”: Does not revoke previous wills or codicils.
- “I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will”: Effective to revoke previous wills and codicils.
- NB: It may be appropriate for a testator to have more than one valid will if they own assets abroad. It is common for a testator to make a will in relation to their UK assets and another will in the jurisdiction where their foreign assets are located. If this applies the wills should not attempt to distribute the same assets and neither should revoke the other.
- Implied Revocation by Will?
- A will is valid without a revocation clause but one should be included as a matter of good drafting. If a later will does not contain an express revocation clause the testator will have more than one valid will. In this situation the combined effect is followed but, to the extent they are inconsistent, the later will impliedly revokes the earlier, so the later will is given priority.
- Revocation by Codicil?
- A codicil (a testamentary document that amends rather than replaces a will) may revoke a will or clauses within in it.
- A codicil will usually only revoke part of a will, and do so by express wording. A codicil should state the extent to which it revokes or confirms the previous Will.
- If express words of revocation are missing, the codicil only revokes the will to the extent it is inconsistent with the will.
- Revocation of a will by destruction will not necessarily revoke any codicils to it.
What are Mutual wills?
where one testator agrees with another testator to each make a will on terms agreed between them. Both testators also agree that neither of them will amend their will without the consent of the other. If a testator attempts to revoke their will, contrary to the previous agreement, equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will.
What are mirror wills?
the wills of a couple which mirror each other.
What is the effect of having mirror wills?
- Executing a mirror will does not imply that there is an agreement not to revoke the will later and there is no constructive trust imposed. The survivor of the couple is free to revoke their will at any time prior to the death of either of them.
- To successfully incorporate an unexecuted document into a will, each of the following criteria must be satisfied:
· The document must exist when the will is executed (or at the time a later codicil is made – because the codicil re-publishes the original will)
· The will must refer to the document as being in existence at the time of execution
· The** document must be clearly identified in the will**
What happens if a doc is validly incorporated into a will?
- If a document is validly incorporated into a will, it becomes part of the will even though the document itself does not comply with s.9 Wills Act 1837.
- The document will be made public along with the will once it is admitted to probate following the testator’s death.
Is it a good idea to incorporate docs into a will?
- The incorporation of an unexecuted document may seem appealing to a client who wants to create a detailed schedule of personal possessions, perhaps with photographs, without this needing to form part of the will itself. However, this should be avoided wherever possible because of the danger of failing to satisfy the conditions, or loss of the document to be incorporated before death.
- If an inventory or detailed list of goods is to be part of the provisions of the will it would be safer to include such a list in the will itself as a schedule.
What are STEP provisions?
· STEP (Society of Trust & Estate Practitioners) is a professional association which promotes best practice on matters such as will drafting and estate administration. STEP have produced a set of nationally recognised administrative powers for personal representatives and trustees. These are commonly incorporated into a will or trust deed as an alternative to drafting lengthy and technical administrative clauses in the body of the document itself.
How can STEP provisions be incorporated?
· The STEP provisions (an unexecuted document) can be incorporated into a will or trust deed by reference i.e. each provision does not need to be copied out in full in the will
· The example below would successfully incorporate these provision into a will:
* The standard provisions and all of the special provisions of the Society of Trust and Estate Practitioners (2nd Edition) shall apply.
What are Letters of wishes?
· Where a trust is created under a will you may find an expression of wishes / letter of wishes has been drafted by the testator and stored with the will.
· These ‘letters’ are common in practice and are drafted by the testator. They set out how the testator would like the trustees of the estate to manage their discretionary powers.
· The letters are not legally binding and merely serve as guidance.
· These letters do not form part of the will (or trust created under it) and there is no intention for these documents to be incorporated into the will.
- Alterations given effect to:
· Made before execution of the will/ codicil
· Obliterations with intent to revoke
· Attested alterations
· Completion of a blank space (presumed to have been completed before execution)
· Subsequently confirmed by re-execution or codicil, with reference to the alteration
- Alterations not given effect to
· Made after execution of the will/codicil (provided original gift still apparent)
· Obliterations without intent to revoke
· Obliterations by 3rd parties
· Obliterations as conditional revocation (provided extrinsic evidence of the original gift can be found)
· Unattested alterations (presumed to have been made after execution)
What can a testator do if they want to alter their will?
· A number of options are available for such a testator. They may choose to make:
* an entirely new will
* a codicil to an existing will (a formal testamentary document amending a will)
* make manuscript amendments to their original will.
How should a client be told to alter their will?
· If a testator wants to alter their will they should usually be advised to make a new will rather than making a codicil or hand amendments to their existing will.
· The cost of making a new will is minimal compared to the costs incurred later if the terms of the will are disputed because of a poorly drafted codicil or because manuscript amendments are unclear or ineffective. The law governing the effect of manuscript amendments is complex and there is a risk that the overall result is not what the testator would have planned.
When are hand alterations binding?
- “No obliteration, interlineation, or other alteration made … after the execution … shall be valid or have any effect… except so far as the words …. before such alteration shall not be apparent, unless the alteration shall be executed in like manner as … required for the execution of a will”
- Obliteration:
where the text has been crossed out in such a way that the original text is illegible
- Interlineation
where writing has been inserted between the existing lines of the document, often to add something that was previously omitted.
general rule for amendments made after the will is executed
· The general rule is that amendments made after the will is executed are invalid and unenforceable. The alteration has no effect and the original wording is given effect to.
Are alterations made prior to execution form part of the will?
Alterations made prior to execution form part of the will and are enforceable.
What is the presumption on when alterations are made?
there is a rebuttable presumption that an alteration was made after execution
What should PRs do to show when an alteration was made to the will?
· The personal representatives could produce affidavit evidence of the state and condition of the will at the time of execution (confirming when the alteration was made) although this would require the witnesses to accurately recall what the will looked like at execution.
Test for attested alteraions?
Alterations made after execution that are valid
· If an alteration is executed like a will (signed by the testator and two witnesses in accordance with s.9 WA) alongside the alteration it is valid. The witnesses do not have to be the same people who witnessed the will.
the initials of the testator and the
witnesses in the margin next to the amendment will suffice.
- Execution of manuscript amendments?
· A testator who needs to make manuscript amendments to their will should be instructed to execute the amendments in the same way as a will.
· If the manuscript amendment itself is not specifically attested, a testator may instead confirm manuscript amendments by:
* re-executing the amended will as a whole
* executing a subsequent codicil that affirms the will it amends
- Note that in both cases, express reference to the manuscript amendments is required to ensure the presumption that the alterations were made after execution is rebutted.
· There are a couple of exceptions to the general rule that unattested alterations are invalid as they are presumed to have been made after execution
· Where a blank space has been completed there is a presumption that this occurred before execution.
· This presumption on timing can be rebutted by internal evidence from within the will or by external evidence (i.e. affidavit of plight and condition signed by witnesses).
Is obliteration effective?
· If the original wording is not apparent because it has been obliterated, covered over or cut out, the obliteration is treated as having been made by the testator with an intention to revoke and the alteration will be effective.
- Meaning of ‘apparent’
· apparent’ means the original wording can be deciphered by natural means (reading it or holding it to the light etc. but not e.g. infra-red technology) and without the need for extrinsic evidence (e.g. draft documents).
· If the testator did not intend to revoke the gift or a third party made the amendment extrinsic evidence can be used to establish the original gift and infra-red technology would be permitted. If the original gift could be determined the beneficiary would take their entitlement.
· Conditional revocation?
· **If the testator made the obliteration with a conditional intent to revoke the gift then extrinsic evidence is permitted to show the original wording. **A fresh copy of the will containing the original wording would be admitted to probate.
* E.g removal of a gift via obliteration for a new gift – if that new gift is not properly attested then there is conditional revocation and extrinsic evidence can be used to show the original wording
· A conditional intention to revoke is usually found where the testator attempted to substitute another figure (here £100) for the original wording (here unknown) and the attempt at substitution has failed.
· The original gift, if it can be ascertained, should be given effect to and extrinsic evidence is permitted to establish the original wording.
- When are manuscript changes appropriate?
- The amendments have no impact on the interpretation or meaning of the will. This could include correction of a typo, change to a beneficiary’s address or correction to the spelling of a name.
- The changes must be made urgently and a codicil or new will cannot be prepared. This may arise where a testator requires urgent hospital treatment or is due to travel abroad.
· If any amendments are made, the testator and witnesses should initial the alterations even if making these before execution and even if the amendments are unimportant. This will avoid the requirement to rebut the presumption on timing.
To make a valid codicil a testator must have ….
testamentary capacity, knowledge and approval (of the codicil, and the will and any previous codicils referred to) and comply with s.9 Wills Act 1837.
- When are codicils appropriate?
· Codicils may be used to:
* create new provisions in a will e.g. add a legacy for a new beneficiary
***edit existing provisions in a will ** e.g. change the value of a pecuniary legacy
* revoke provisions in a will e.g. remove a particular beneficiary’s entitlement
· If the testator wants to make significant or multiple changes it is usually advisable to execute a new will rather than make a codicil to remove the risk of inconsistency between the documents.
How many codicils can you make?
· There is no legal maximum number of codicils a person can make but given the potential for confusion it is usually advisable to limit the number of codicils made to an original will.
· There is a significant risk of error when drafting codicils. The following are some of the issues which can occur:
- Not expressly noting a change to the testator’s name or address
- Not affirming the parts of the original will which remain unchanged
- Missing or incorrect cross reference to the date of the original will or earlier codicil
- New codicil that refers only to the original will and not the previous codicil(s)
- The effect of the codicil does not make sense when read in conjunction with the original will and/or fails to take into account changes made by a previous codicil
- Incorrect references to clause numbering (this is more likely when freestanding clauses are added rather than changes made to existing clauses)
Ptresumption when there are no express words of revocation in a codicil?
· If there are no express words of revocation there is a presumption (which can be rebutted) that the terms of the original will remain where possible. The codicil will only revoke an earlier will to the extent there is inconsistency between them (Lemage v Goodban).
What should you do when drafting a codicil to avoid ambiguity or inconsistencies?
· For the avoidance of doubt the codicil should expressly state the extent to which the testator confirms or revokes their earlier will (and any previous codicils).
When inconsistencies arise with regards references to the date of the will (or earlier codicil), or the number of codicils that exist, what could be done?
· Where inconsistencies arise with regards references to the date of the will (or earlier codicil), or the number of codicils that exist, affidavit evidence can be provided to explain the discrepancy.
- What problems can be corrected by codicil?
· If a beneficiary (or their spouse) witnesses a will, s15 Wills Act 1837 has the effect of denying the beneficiary their inheritance. However, if a later codicil is witnessed by different people, the gift under the will to the original witness can be given effect to and the effect of s 15 WA 1837 is avoided.
· If the will (or previous codicil) contains unattested manuscript amendments, which would not have effect under the general rule in s 21 Wills Act 1837 because they were made (or deemed to be made) after execution, these can be confirmed by a later codicil.
· The amendments must be made before the codicil is executed, and the codicil must expressly refer to the alterations it confirms. Otherwise additional evidence is needed to prove the amendment was made before the codicil was executed.
· If a will (or previous codicil) was not properly executed in accordance with the requirements of s 9 Wills Act 1837 then due execution of the codicil will validate the original will (or previous codicil) to which it refers. Technically this is not a “re” execution as due execution of the original document did not occur.
Because it is republishing the will
How can a codicil revoke a will?
· A codicil may revoke only part of an earlier will (or codicil), or it may revoke the document in full. If a codicil expressly revokes a previous will (and codicils to it) in full, unless the codicil contains new terms, the testator will effectively be intestate.
How can a codicil revive a will?
· A codicil can only re-publish a will that is currently valid and has not previously been revoked. However, a codicil can revive a will that was revoked previously if this is the testator’s intention (s 22 Wills Act 1837).
· It is usually preferable to make a new will rather than revive a will that has been revoked as there may be confusion regarding testamentary documents made in the interim, and if the original was destroyed it cannot be revived.
· If a codicil revokes all/part of a will, and the codicil itself is then subsequently revoked, this would not automatically re-instate the terms of the will that had been revoked by the codicil.
How can you avoid revoking your will if you get married/enter a civil partnership.
· It is possible to avoid revocation by making a will in contemplation of a particular marriage/civil partnership
What is the effect of divorce on a will?
· A testator’s divorce or the dissolution of their civil partnership by virtue of s18A and s 18C WA 1837 has the effect of treating the former spouse/civil partner as having died before the testator - this is a partial revocation of the will
· S.18A/C apply to all references to the former spouse/civil partner in the will and renders their appointment as an executor and/or trustee ineffective, as well as any gift to them void
- Revocation by marriage/civil partnership?
· By s 18 Wills Act 1837 (‘WA 1837’) when a person marries this automatically revokes in full any will (and codicil) made prior to the marriage, even if this is not the testator’s intention. This would be the case whether the testator marries someone of the same or opposite sex.
· S 18B WA 1837 has the equivalent effect for a testator who enters into a civil partnership.
· The effect of s 18 is significant and many clients will be unaware of its effect.
· Therefore, when meeting a client it is important to identify whether or not they plan to get married in the near future. Even if your client does not, you should advise on the effect of s 18 in case their circumstances change.
- Wills in contemplation of marriage?
· If your client plans to marry/enter a civil partnership after signing their will, and does not wish their will to be revoked as a result, it is possible to avoid the effect of s 18/18B by drafting the will in contemplation of marriage/civil partnership.
· The will must name the future spouse/civil partner and identify the intended ceremony. It must also expressly state whether or not the testator intends the will to be revoked on the event of the marriage/civil partnership.
· It is not possible to avoid revocation by making a will in contemplation of:
- a hypothetical marriage
- a marriage/civil partnership to one person but then marry/enter a civil partnership with someone else
What else should you put in a clause that contempl;ates marriage?
· If the will includes a clause ensuring its survival following the marriage or civil partnership, you should also take instructions re the effect of the ceremony not taking place (e.g. due to the testator’s death or the couple’s separation).
· In essence, is the testator’s new will (and any revocation of a previous will) also intended to be conditional upon the marriage/civil partnership? In the absence of express wording to the contrary the new will takes effect even if the ceremony does not. The testator may want this if they have died but not if the couple have separated. The will should expressly state the testator’s intention.
Can contrary intention in the will stop the effect of divorce?
YES
· The effect of ss 18A and 18C is subject to any contrary intention expressed in the will i.e. the testator could expressly state that he/she wants a spouse or civil partner to inherit, notwithstanding any divorce or dissolution of the civil partnership.
What should be included in a will to revoke previous wills?
No particular wording is required, but a professionally drafted will
usually begin with a statement such as ‘I hereby revoke all former wills previously made by
me’. The inclusion of such a statement in a will is sufficient to revoke previous wills.
If a will does not contain an express revocation clause, it operates to revoke any earlier will or
codicil by implication to the extent that the two are inconsistent. This could result in complete
revocation of the earlier will if the two are totally inconsistent or there could be just a partial
revocation in which case the two wills will need to be read together in order to piece together
the testator’s intentions.
doctrine of ‘conditional
revocation’ or the doctrine of ‘dependent relative revocation?
the court may construe a testator’s intention to revoke an earlier will by an
express revocation clause as being conditional upon a particular event (eg the effectiveness
of the new will). If that condition is not satisfied, the revocation may be held to be invalid
so that the earlier will remains effective
What physical acts are needed to destroy a willl?
A will may be revoked by ‘burning, tearing or otherwise destroying the same by the testator or
by some person in his presence and by his direction with the intention of revoking the same’ (s
20 Wills Act 1837).
Physical destruction is required: symbolic destruction (eg simply crossing out wording or
writing ‘revoked’ across the will) is not sufficient, although if a vital part (eg the signature) is
destroyed, this partial destruction may be held to revoke the entire will.
What happens if a will is partially destroyed?
if a vital part (eg the signature) is
destroyed, this partial destruction may be held to revoke the entire will. If the part destroyed
is less substantial or important, then the partial destruction may revoke only that part which
was actually destroyed. The test is whether the remainder of the will is intelligible and can still
operate in the absence of the destroyed part.
When may the court apply the doctrine of dependent relative revocation to save a will when the will was destroyed?
Sometimes, the court may apply the doctrine of dependent relative revocation to save a will,
on the basis that the testator’s intention to revoke their will by destruction was conditional
upon some future event (eg upon the later execution of a new will). If that event did not in fact
take place, the original will may be valid even though it was destroyed. The contents of the
original will may be reconstructed from a copy or draft.
Does a codicil change the time the will has deemed to be have been made?
Yes
Under s 34 Wills Act 1837 a republished will is deemed to have been made at the time
of republication.
What happens if the original wording after an invalid alteration is not apparent?
Where an invalid alteration has been made, the original wording of the will stands provided
that it can be deciphered. The requirement is that the original wording must be ‘apparent’
.
This means optically apparent. The original wording of the will must be capable of being
read on the face of the will by ordinary means. So, for example, the original wording will be
apparent if it can be read using a magnifying glass or by holding the will up to the light. It is
not possible to ascertain the wording by extrinsic evidence (eg from the solicitor who drew up
the will). Nor is it possible to ascertain the wording by interference with the will (eg applying
chemicals) or by producing another document (eg an X-ray of the will).
Structure for most wills precedents?
- introductory clauses,
- appointment of executors and guardians,
- dispositive clauses,
- administrative provisions,
- execution/attestation.
o Revocation, date and attestation clauses should be included to avoid confusion but a will is still valid without them.
How to appoint a law firm as executors?
o To appoint a law firm partnership all of the partners must be appointed (then expressly limit the number). An LLP and trust corporation may appointed directly.
How are most executors and trustees appointed in a will (clause)?
o Most wills appoint executors and trustees in the same clause and appoint the same people in both capacities.
What do administrative powers do?
o The administrative clauses state the powers the executors and trustees have to carry out their role.
Do powers in a will take priority over other ones?
Yes
Express powers take priority over statutory and common law defaults.
What should be included in a commencement clause?
o I TOM JAMES JONES sometimes known as JAMES JONES of [ ] a solicitor declare this to be my last will and testament
o Purpose is to identify the testator (stating their full name and address). The testator’s occupation is sometimes also added.
o If the testator is known by another name that should be referred to (see example above).
o If the testator owns assets in another name the grant of representation must refer to each possible alias. If it does not, it will not be possible to administer all of the estate and this causes delays.
o The date can be included in the commencement or at the end of the will.
What should be in a revocation clause in a will?
o I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will
o A revocation clause can be included as part of the commencement or as a separate clause.
o It ensures that all previous wills/codicils (both are testamentary documents) are revoked so only one valid will exists at any one time.
o A will is valid without a revocation clause but one should be included as a matter of good drafting to avoid uncertainty.
o If a testator has more than one valid will the later will impliedly revokes the earlier will but only to the extent that it is inconsistent with or merely repeats the terms of the earlier will.
o There are other methods of revoking a will either in whole or in part. For example by way of codicil, in the event of a testator’s marriage/divorce, or civil partnership or its dissolution, destruction of the will, or making effective manuscript amendments. However, the most common form of revocation is express revocation by way of a later will.
- Burial & Funeral wishes clauses?
o I WISH for any part or parts of my body where possible to be used for transplantation and for the treatment of others but subject to this I request that all burial and funeral arrangements conform with Bahá’í law and tradition
o Many testators want to direct what should happen to their body after their death and have specific funeral and burial instructions they would like followed. These clauses are usually inserted at the start of the will before the operative provisions.
o The instructions are not legally binding on the personal representative (‘PRs’) but will normally be followed where possible.
- Appointment of executors and trustees clauses?
o I APPOINT [ ] and [ ] (hereinafter called “my Trustees”) jointly to be the executors and trustees of my will but if either of them shall be unable or unwilling to act I appoint [ ] to fill any vacancy thereby arising
o If a trust does or could arise following the testator’s death, e.g. an express trust is created or there are minor beneficiaries, at least two trustees should act (or a trust corporation).
o It is common, but not necessary, to appoint the same person(s) in capacity as both executor and trustee. A defined term of either “Executors” or “Trustees” can be used throughout the rest of the will. Trustees is more common.
o The above example appoints two executors to act jointly, in the role of both executor and trustee, and names a third executor to act if either of the two appointed do not act.
o A family member will often be appointed along with a legal professional. A professional executor can provide experience, expertise and a neutral perspective that family members cannot offer.
- Appointment of law firm partnership as executors clause?
o I appoint the partners (which term includes directors or members) at the time of my death in the firm of [ ] or the firm which at that date has succeeded to and carries on its practice including a firm which has been incorporated or formed an LLP ……………..to be the executors and trustees of this my will and express the wish that no more than two of them shall prove my will and act initially in its trusts but that [ ] if then a partner should be one of them
o A partnership does not have a separate legal identity distinct from its partners so cannot be appointed. Instead, all of the partners (construed as profit sharing) at the date of death are appointed (‘a’ or ‘any one’ partner is void for uncertainty).
o The number who should act can be limited by stating only ‘one/two’ should act. A testator can express a preference for a specific partner but should avoid a personal appointment (that person may no longer practice or work at the firm).
o The example above considers that the firm in the future may change its name, merge with another, convert to an LLP or incorporate.
o Many law films have LLP status. An LLP has legal capacity to apply for a grant of representation and may be appointed as an executor (see above).
o I APPOINT my spouse and [ ] LLP of [ ] jointly to be the executors and trustees of this my will (hereinafter called my Trustees)
o A trust corporation is a specific type of corporation with authority to carry out trustee and PR roles. Law firms, banks and financial institutions may have established their own trust corporation and this will have separate legal personality from the limited company or LLP that owns or runs it. A trust corporation may be appointed as executor.
o I APPOINT [NAME OF TRUST CORPORATION] to be the only executor and trustee of this my will (hereinafter called my Trustee)
o An LLP or trust corporation may be appointed as sole executor and trustee.
- Appointment of professional executors - payment?
o Only professional executors and trustees may charge for their time (s.29 Trustee Act 2000 (‘TA 2000’)). However, this statutory right to charge imposes some restrictions.
o Rather than relying on the scope of s 29 TA 2000, professional executors and trustees (whether partners in a law or accountancy firm, an LLP or a trust corporation) will want to include an express charging power. This is commonly added as part of the appointment clause.
o Any Professional Trustee is entitled to charge, and be paid, reasonable remuneration for services that the Professional Trustee or their firm provides.
o Receiving payment for services under s 29 TA 2000 or an express charging clause is not a breach of fiduciary duty, either by way of making a profit from a fiduciary position or a breach of the prohibition on self-dealing/ no conflict rules.
- Appointment of Guardians clause?
o I APPOINT [ ] and [ ] jointly to be the guardians of any of my children who have not attained the age of 18 at the death of the survivor of myself and my civil partner [ ]
o A testator with parental responsibility may appoint a legal guardian for their infant children by will (s 5 Children Act 1989). Appointment by one parent would not normally take effect until after the death of the surviving parent.
o Acting as guardian is a position of responsibly and the testator should obtain consent from the proposed guardian(s) that they are willing to act. A guardian is not required to accept their appointment.
o Consider whether any financial provision for the guardian is appropriate e.g. a legacy to be paid only if the guardian is appointed.
o Consider whether jointly appointed guardians will work together effectively.
An executor’s primary duty?
o An executor’s primary duty is to administer the estate. Once they have distributed the remaining assets to the beneficiaries their task is complete. A trustee is responsible for the management of any trusts that continue following the estate administration and this role continues for as long as the trust is in existence.
o An understanding of the trustee role as well as the executor role is important when drafting a will because:
the will may include an express trust
even if no express trust is created a trust may arise if the executors cannot distribute all of the estate e.g. a beneficiary is a minor or there are contingent interests which have not been satisfied. In which case the assets gifted under the will need to be held on trust until such time as they can be distributed.
* In both situations the will drafter must consider the administrative powers required both by an executor to ensure effective estate administration and a trustee to ensure proper management of any ongoing trust.
What happens when a will does not contain express administrative powers?
o If a will contains no express administrative powers then by default only statutory and common law powers will apply. This is also the case when someone dies intestate (without having made a will).
What can express powers in wills do in relation to default administrative powers?
Express powers may restrict, re-state, or expand the default position and may also create new powers which would not otherwise exist.
When do express administrative clauses appear in wills?
o Professionally drafted wills usually contain express administrative provisions which should reflect the needs of the client. These clauses usually appear at the end of a will after the clauses that dispose of the testator’s property.
How is a trust created in a will?
o Where a trust is created by will, the will itself is the trust deed. However, for clarity, ‘trust deed’ usually refers to a document creating a lifetime trust and ‘will’ refers to the document that creates a trust following death.
o A will may contain a list of express clauses at the end or may include by reference a standard set of express clauses. The standard provisions produced by the Society of Trusts and Estates Practitioners (STEP)) are nationally recognised and widely used in practice.
o STEP is a professional body promoting best practice for those advising on wills, trust and tax matters. The use of standard provisions avoids the need for an extensive list of clauses to be included in the will itself. The detail of the STEP provisions is outside of the scope of the module.
- Date & Attestation clause?
o Date: []
o Signed by [ ] in our joint presence and then by us in [his OR her] presence
o An attestation clause describes the circumstances in which the will was signed.
o The attestation clause usually states that the will was executed in the presence of two or more witnesses (who attest the execution), and in doing so confirms the requirements for due execution in s 9 Wills Act 1837.
o The date may be included as part of the attestation clause (or earlier at the commencement) but should not appear in both places.
o The testator does not have to sign at the end of the will but it is common practice for the attestation clause to be the final clause in the main body of the will to avoid any question about their intention.
What should gift of residue contain?
- The gift of residue will usually be more complex than other gifts as it should include a definition of the property, explain what items will be paid out of residue, and often trusts are created.
What happens when s specific, general or pecuniary gift fails?
- The failure of a specific, general or pecuniary gift, in the absence of any express or implied substitution, means the subject of the gift would be distributed under a clause giving away the chattels (if relevant) or fall within the definition of ‘residuary estate’ and pass under the residue clause.
What happens when a residue clause fails?
- The failure of the residue clause (or any part of it) will usually give rise to full or partial intestacy.
- Dispositive clauses?
By these clauses a testator directs who is to inherit their assets, what each person should receive and on what terms
When are the words legacy and devise used in the wills?
Legacy’ normally refers to a gift of chattels or personalty and ‘devise’ is normally used in relation to gifts of real property (land).
In what order do dispositive clauses appear in wills?
Traditionally, the dispositive clauses appear in the following order with non-monetary gifts first, followed by gifts of cash, and finally the gift of ‘everything else’ referred to as the residue
What are specific gifts?
- Specific gifts are of a particular item owned by the deceased at the date of death (distinguished from other property of a similar type owned by the deceased).
- If the testator does not own at death the item referred to in the will the gift adeems (fails to take effect) and the beneficiary receives nothing.
How should specific gifts be drafted?
- A specific gift should be drafted precisely.
The subject matter must be clear so the item can be identified, otherwise the clause may fail for uncertainty.
e.g. I GIVE to [ ] my painting of Epsom race course framed in red and gold absolutely
Are collections of chattels specific gifts?
Yes
The statutory definition of chattels (which applies on intestacy)?
all tangible movable property except for money or securities for money, assets used at the intestate’s death solely or mainly for business purposes and assets held at the intestate’s death solely as an investment”
- It includes vehicles, modes of transport and pets.
- It excludes: Money or securities for money Items used solely or mainly for business purposes Items owned solely as an investment
In what order should specific gifts and chattel gufts appear in wills?
- Where a will contains specific gifts and also a gift of chattels as defined by s 55 there would be a conflict if both clauses attempted to give away the same items.
- To avoid this, specific gifts of items/collections appear before the gift of chattels in a will, and the gift of chattels is drafted to cover only the items that have not already been given away (see words in bold above).
What land would be subject to specific gifts of land?
- Property owned as joint tenants passes outside of the succession estate and is not distributed under the terms of the deceased’s will (or intestacy).
- Instead, the property will pass automatically to the surviving co-owner under the law of survivorship. If this reflects the intention of the testator no provision within the will is required.
- Property owned solely by the testator, or jointly as tenants in common, is included within the succession estate and will pass in accordance with the deceased’s will (or intestacy).
- If a testator wants this property to be given to a sole beneficiary of the residuary estate, no specific provision within the will is required.
- If the testator has no particular beneficiary in mind to receive the property and is happy for it to be sold as part of the administration (with sale proceeds being distributed according to the terms of the will) no specific provision within the will is required.
- If a testator wants to give away their interest in a property to a particular beneficiary(ies) then the usual considerations regarding specific gifts should be addressed:
- If a testator wants to give away their interest in a property to a particular beneficiary(ies) then the usual considerations regarding specific gifts should be addressed:
The property must be identifiable. The full address and registered title number should be used. \
The clause should expressly state what will happen if that property is no longer owned by the testator when they die. Should a specific alternative property be given? Or should the gift be of the testator’s “main residence on the date of my death”. Additional matters should also be considered which include:
* The property must be capable of passing under the will so if owned as joint tenants the joint tenancy will need to be severed.
* A solicitor should check whether any third party interests affect the property and/or if the testator holds the property on trust for anyone else.
* If the property is owned jointly as tenants in common and the testator wants to leave their share to someone other than the surviving co-owner the testator needs advising on the rights of the co-owner.
The testator should be given tax advice regarding the Residence Nil Rate Band.
* If the property is subject to a secured charge/mortgage the testator will need advice relating to the repayment of any outstanding loan and who should be liable for this.
* If the testator does not want to make an outright gift and instead plans to leave the property on trust e.g. conferring a right of occupation or an interest in possession, then practical considerations should be considered. Who will have a right to occupy? Should they pay rent? Can they veto a sale? Who pays the expenses associated with upkeep?
* If the property is being left to more than one person the terms of their joint ownership should be clear.
What is a general legacy?
- A general legacy is a gift of property which is not distinguished from property of a similar type – e.g. “a” rather than “my”.
Why do general legacies not normally fail?
- A general legacy does not normally fail because the PRs would have to buy the specified property if it was not part of the estate at death.
Demonstrative legacy?
- A demonstrative legacy is a type of general legacy (most often pecuniary in nature) which the will directs should be paid out of a specified fund. Such a gift will not fail if there are insufficient assets in the specified fund. Instead, if the specified fund has ceased to exist or is inadequate then the beneficiary is entitled to receive what is left in the fund and to have the balance of the legacy paid as a general legacy.
Example of demonstrtive legacy clause?
- I GIVE to [ ] the sum of five hundred pounds (£500) to be paid from my Rochdale Building Society Account absolutely
Pecunary legacy clause?
- A pecuniary legacy is a gift of money.
- It can be specific (‘my £300 in the safe in the garage”) or general (see above).
- The clause will often contain the amount of the gift in numbers and words in case there is an error when typing a numerical figure.
- e.g. - I GIVE to [ ] the sum of five hundred pounds (£500) free of tax and absolutely
Ways to avoid a gift of residue failing?
avoid giving separate parts of residue (Example 1) and instead use clauses similar to Example 2;
create express substitution clauses in the event that original gift does not take effect; and/or
use an ultimate gift over clause (sometimes referred to as a disaster clause) where the testator specifies who their estate should pass to in the event of all other gifts failing. A gift to a charity is a common choice of ultimate beneficiary.
What does the word “my” demonstrate in a will?
The word “my” demonstrates the requisite intention and that item is identified with reference to the property owned at the date of the will
When are items that comprise a collection identified?
Items that comprise a collection are identified at the date of death
When are people are identified in a will?
o To identify the person(s) who should inherit under a clause the will is deemed to speak from the date of execution, unless the wording in the will shows a contrary intention.
o Where a gift is given to a class of beneficiaries e.g. ‘my grandchildren’ a testator should state expressly when the beneficiaries will be determined e.g. does the testator mean grandchildren alive when the will was executed / when the testator dies / all grandchildren including those born after the testator dies? Without express wording the ‘class closing’ rules apply and the class closes when the first beneficiary in the class obtains a vested interest.
o The execution of a later codicil republishes the will it amends and under the general rule people are identified with reference to the date of the codicil. A gift to ‘my nurse’ in a will would refer to the nurse at the date of a later codicil not the will.
IHT attached to gift in will?
o In the absence of any express provision an individual gift in a will is made free of inheritance tax (‘IHT’) and IHT would be payable out of the residue as a general testamentary expense.
o For the avoidance of doubt it is standard practice for legacies to be drafted expressly as free from tax and for the residuary estate to bear the burden of such tax even if it is not strictly legally necessary.
What costs is a specifc gift made subject to?
A specific gift is made subject to expenses and costs of transfer
What is a gift of property made subject to?
o The general rule set out in s.35 Administration of Estates Act 1925 (AEA) is that unless the will shows a contrary intention, the asset charged bears liability for payment.
o The beneficiary will therefore inherit the property subject to the charge.
o A testator can expressly relieve the property of the charge. It would then become a general debt of the estate to be paid out of residue.
Note that a general direction in the will to pay debts and expenses from the residue of the estate is insufficient to oust the effect of s.35.
General rule for intrepreting gifts in wills?
: Unless a contrary intention is shown, the will speaks from the date of the testator’s death in respect of identifying the subject matter of a gift
How is contrary intention shown in a will?
- A contrary intention can be demonstrated by the use of words such as ‘my’ (as you would see in a specific legacy), ‘now’, or ‘at present’ when describing a gift. These words make the date of execution of the will the relevant date. In both examples below the car the testator owned when they executed the will (not when they died) would be the subject matter of the gift.
Does contrary intention impact what date a collection is referenced from?
o If there is a gift of a collection which is capable of growing the will speaks from the date of death notwithstanding the use of ‘my’.
o Instructions should be taken from the testator as to whether he intends the gift to be of the collection owned at the date of the will or to include any items acquired in the future. This should then be expressly provided for in the drafting
- Relieving provisions?
o Relieving provisions deal with such matters as who should bear the burden of taxes, charges (e.g. mortgages), expenses and costs. Such provisions should be expressly stated to avoid confusion but in the absence of express wording there are general rules which apply.
Can a testator oust the general rule that a gift does not bear its own IHT?
o If the general rule does not reflect the testator’s wishes the testator can oust the general rule by stating a gift is to bear its own inheritance tax.
o In the absence of any express provision specific beneficiaries bear the burden of the:
cost of delivery of the item of property to them
expenses incurred since the date of death in preserving the item or ensuring its upkeep
o The testator may prefer these costs to be paid out of the residuary estate and if so, the gift should be stated to be ‘free of’ expenses and / or costs of transfer.
o Under s 21 Administration of Justice Act 1982 extrinsic evidence may be submitted in the following circumstances:
If the will or any part of it is meaningless;
If the language used in any part of it is ambiguous on the face of it;
If the will is ambiguous in light of the surrounding circumstances.
o Extrinsic evidence is used to help with construction of the will. Evidence is not used to vary or contradict the language used by the testator in the will.
What should be considered when drafting gifts to testator’s issue?
o When drafting gifts to the testator’s issue consider whether a class gift should be made or gifts to named individuals. If a class gift is made express wording should be used to state when the class closes.
When do contingent interests arise?
Contingent interests arise where a beneficiary must satisfy a condition before their interest vests.
What happens if a beneficiary dies before a testator?
o If a beneficiary dies before a testator a gift to them will lapse.
s. 33 Wills Act 1837?
o In the case of gifts in a will to the testator’s issue, if there is no express substitution clause, s.33 Wills Act 1837 (set out below) may apply to prevent the gift lapsing where:
33 (1)
* a will contains a devise or bequest to a child or remoter descendant of the testator; and
* the intended beneficiary dies before the testator, leaving issue; and
* issue of the intended beneficiary are living at the testator’s death,
o then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.
o S.33(2) includes a similar provision but in relation to class gifts to children/grandchildren.
o Section 33 applies where:
there is a will containing a gift to the testator’s issue (child or other lineal descendant)
the intended beneficiary dies before the testator leaving issue of their own who are living at the testator’s death
* The effect of s 33 is to enable the gift to be shared equally between the issue of the deceased beneficiary, provided no contrary intention is expressed in the will.
It is good practice to include substitution provisions expressly for clarity even if s 33 would otherwise apply to achieve the same result.
Where s 33 applies and the original gift is contingent (e.g. to a beneficiary at 21) it may be unclear whether s 33 imposes a similar contingency on the substitution. It is therefore preferable to provide expressly what the terms of any substitutional gift should be.
It is important to appreciate that s 33 only applies to gifts to issue of the testator (whether to a named child or remoter descendant, or a class gift consisting of children or remoter descendants). However, it does not operate in relation to any other gifts. For example, a gift to a sibling who has predeceased will lapse and s 33 will not apply to enable nieces and nephews to inherit. Therefore, express wording is needed if this is the testator’s intention.
Does not create a contingency unlike intestacy rules
Which children does a gift to children include?
o A gift to children includes illegitimate (born to unmarried parents), legitimated (born to unmarried parents who later marry) and adopted children. However, a stepchild is not included unless the interpretation of the will is clear this was intended.
General rule for when a class closes?
o The general rule is that a class closes (i.e. the beneficiaries within the class are identified and no one born subsequently can qualify) when any one member of the class first becomes entitled in possession.
What happens if no contingency applies to the class?
o If no contingency applies (or at least one of the class has already satisfied the contingency when the testator dies) the class closes on the date of death, provided there is at least one person who satisfies the definition
Vested interest?
o A gift vests if it is given outright and absolutely and there are no conditions which must be met.
Does age affect someone’s vested interest?
If the testator’s children were aged 15 and 19 when the testator died both would have a vested interest even though one of them is a minor (under 18). Vesting is not about age. If a minor with a vested interest dies before attaining the age of 18 the gift belongs to them and will pass into their own estate.
However, where a vested gift is made to a minor the gift would be held on trust until the child attains 18 because a minor cannot give a good receipt for capital.
It is sometimes possible for a child aged 16 or 17 to give good receipt but only if there is an express clause within the will permitting this.
When does s.33 not apply?
o Section 33 will apply unless excluded by the wording of the will or the will otherwise indicates a contrary intention. If a testator does not want s.33 to apply it is important that this is clearly stated.
o If the testator wishes to leave a gift to a club, institution, charitable organisation or other unincorporated association the drafter must have regard to the following:
The organisation should exist and a full name and address (plus registered number of a charity) should be used to avoid doubt over the identity of the intended beneficiary.
Consider whether the organisation has registered charity status (there are inheritance tax implications).
Express provision should be made for the organisation subsequently changing its name, amalgamating with another organisation or ceasing to exist.
Provision should be made for who can give valid receipt (it is common to name the treasurer). In the absence of express provision all members or potential beneficiaries would need to give a receipt which is not practical.
o For gifts to charities, the testator should decide what they wish to happen if the charity ceases to exist or is subject to a winding up order. If the testator wants the gift to be given only to the named charity and/or not made if the charity is subject to a winding up order then ensure this is expressly stated.
e.g. * I GIVE to [ ] of [ ] (registered charity No.) (‘the charity’) absolutely £6,000 for its general purposes provided that:
* if at the date of my death the charity does not exist or is subject to a winding up order my Executors shall pay the legacy to such another charitable body having the same or similar objects
* the receipt of the treasurer or other appropriate officer for the time being of the charity (or of any substituted charity) shall be a good discharge to my Trustees
When interpreting a will, the task is to discern the testator’s intentions through the language of
the will itself. In trying to establish those intentions the court applies two basic presumptions:
(a) Non- technical words bear their ordinary meaning
It is possible for some words to have several different meanings and then the court has
to try to determine the meaning the testator intended given the context of the will as
a whole –
eg ‘money’ can mean notes and coins, but it can also mean everything an
individual owns.
(b) Technical words are given their technical meaning
For example, in Re Cook [1948] 1 All ER 231 the testatrix made a gift of ‘all my personal
estate …
’ The court gave the word ‘personal’ its technical meaning of personalty as
opposed to realty.
These presumptions may be rebutted if from the will (and any admissible extrinsic evidence)
it is clear that the testator was using the word in a different sense. So, the testator can use
words in their own way provided it is clear from the will that that is what the testator intended.
The court cannot, however, invent different meanings
How to reference spouse/civil partner in will?
The terms ‘husband/ wife’ and ‘civil partner’ are not synonymous. So, a gift to ‘John’s wife’ will
fail if John never marries but enters a civil partnership instead.
How can a gift in will fail?
- Uncertainty
- Benficiary is a witness
- Divorce/dissolution
- Ademption
- Lapse
- Disclaimer
- Forfeiture
How can a gift in will fail for uncertainty?
If it is not possible from the wording of the will to identify the subject matter of the gift or
the recipient, the gift will fail for uncertainty. Obviously, the court will first seek to establish
the testator’s intentions and consider its powers of rectification (see 2.4), but if the meaning
cannot be discerned the gift fails. The only exception is a gift to charity which does not
sufficiently identify the charity. Provided that it is clear that the gift is exclusively for charitable
purposes the court can direct which charity is to benefit.
Ademption?
A specific legacy (ie a gift of a particular item or group of items of property) will fail if the testator no longer owns that property at death. The gift is said to be ‘adeemed’. Ademption usually occurs because the property has been sold, given away or destroyed during the
testator’s lifetime.
What problems can arise with regards to ademption?
Problems may arise where the asset has been retained but has changed its nature since the will was made. For example, where the will includes a specific gift of company shares, the company may have been taken over since the will was made so that the testator’s shareholding has been changed into a holding in the new company. In such a case, the
question is whether the asset is substantially the same, having changed merely in name or
form, or whether it has changed in substance. Only if there has been a change in substance
will the gift be adeemed.
Another area of potential difficulty occurs where the testator disposes of the property
described in a specific gift but before death acquires a different item of property which
answers the same description; for example a gift of ‘my car’ or ‘my piano’ where the
original car or piano has been replaced since the will was made. It has been held that
the presumption in such a case is that the testator intended that the specific gift was to be
of the particular asset they owned at the date of the will so that the gift is adeemed. By
referring to ‘my’ car or piano, the testator may be taken to have shown a contrary intention
as specified in s 24 Wills Act 1837 (see 2.5). However, this interpretation may vary according
to the circumstances, and the respective values of the original and substituted assets may be
taken into account.
How does a gift lapse and what happens if it does lapse?
A gift in a will fails or ‘lapses’ if the beneficiary dies before the testator. If a legacy lapses,
the property falls into residue, unless the testator has provided for the possibility of lapse
by including a substitutional gift. If a gift of residue lapses, the property passes under the
intestacy rules (see Chapter 4), unless the testator has included a substitutional gift in the
will. Where no conditions to the contrary are imposed in the will, a gift vests on the testator’s
death. This means that provided the beneficiary survives the testator, for however short a time,
the gift takes effect. If the beneficiary dies soon after the testator the property passes into the
beneficiary’s estate.
It is possible to show a contrary intention, for example by wording a gift to make it clear
that the property is to pass to whoever is the holder of a position or office at the date of the
testator’s death.
How is the order of death established if it is unknown what order someone died in?
f the order of their deaths cannot be proved, s 184 Law of Property Act 1925 provides that the elder of the two is deemed to have died first. If the testator was older than the beneficiary,
the gift takes effect and the property passes as part of the beneficiary’s estate.
Survivorship clauses?
Commonly, gifts in wills are made conditional upon the survival of the beneficiaries for a
specific period of time, such as 28 days. These survivorship provisions prevent a gift from
taking effect where the beneficiary survives the testator for only a relatively short time or is
deemed to have survived by s 184. As with any other contingent gift, if the beneficiary fails to
satisfy the contingency, the gift fails.
Lapse of gifts to more than one person?
A gift by will to two or more people as joint tenants will not lapse unless all the donees die
before the testator. If a gift is made ‘to A and B jointly’ and A dies before the testator, the
whole gift passes to B.
If the gift contains words of severance, for example ‘everything to A and B in equal shares’,
this principle does not apply. If A dies before the testator, A’s share lapses and B takes only
one share. The lapsed share will pass under the intestacy rules unless, as is often the case,
the testator included a substitutional gift to take effect if one of the original beneficiaries
predeceased.
If the gift is a class gift (eg ‘to my nieces and nephews equally if more than one’), there is no
lapse unless all the members of the class predecease the testator.
Section 33 Wills Act 1837?
An exception the doctrine of lapse applies to all gifts by will to the testator’s children or remoter
issue (ie direct descendants) unless a contrary intention is shown in the will. Its effect is to
incorporate an implied substitution provision into such gifts. It provides that where a will contains
a gift to the testator’s child or remoter descendant and that beneficiary dies before the testator,
leaving issue of their own who survive the testator, the gift does not lapse but passes instead to
the beneficiary’s issue. The issue of a deceased beneficiary take the gift their parent would have
taken in equal shares. This is particularly important when establishing entitlement under the will
because the substitutional gift does not appear on the face of the will.
Section 33 does not apply if the will shows a contrary intention. This is usually shown by including an express substitution clause.
Disclaimer?
A beneficiary cannot be forced to accept a gift. A beneficiary can disclaim the gift, which will
then fall into residue or, in the case of disclaimer of a gift of residue, pass on intestacy (see
7.3). A beneficiary who disclaims a gift is treated as having predeceased the testator, which
will allow the beneficiary’s issue to replace them under s 33 Wills Act 1837 (see 2.7.5.5).
However, a beneficiary who has received a benefit from a gift (eg a payment of income) is
taken to have accepted the gift and may no longer disclaim.
Forfeiture in wills?
As a matter of public policy a person should not profit from their own crime. The long
established forfeiture rule provides that a person should not benefit from the estate of a
person they have unlawfully killed. The rules applies to any entitlement whether it arises by
survivorship, under the intestacy rules or under the terms of a will.
The rule applies to various forms of unlawful killing including murder, manslaughter, aiding
and abetting suicide and causing death by careless driving. However, the rule does not apply
where the killer was insane.
Subject to a contrary intention in the will, a person who forfeits an entitlement under a will is
to be treated as having predeceased the testator. This means that if a child of the testator
forfeits or disclaims, their issue can be substituted under the s 33 Wills Act 1837
In cases of unlawful killing other than murder the Forfeiture Act 1982 allows the court to modify
the effect of the forfeiture rule. The court can modify the effect of the rule in any way including
granting complete relief. The court must not make an order unless satisfied that the justice
of the case demands it having regard to the conduct of the deceased and the offender and
all the surrounding circumstances. The killer must apply for the relief within three months of
conviction. The time limit is strict, and the court has no discretion to extend the period.
Opening of a will?
The main purpose of the opening is to identify the testator and the nature of the document.
The full name and address of the testator should be stated.
The date should appear within the commencement or at the end of the will. It is advisable
to date a will so that the chronology can be established for the purposes of revocation (see
3.2.1). The will is dated at the time it is executed.
If the testator intends to marry in the near future, they should state that the will is made in
expectation of that marriage and that they do not wish the marriage to revoke the will (see
3.2.3). In the absence of such a statement the will is automatically revoked by subsequent
marriage. Formation of a civil partnership has the same effect.
In family wills, common express trusts are:
*
contingent trusts, conditional on the beneficiaries attaining a specified age;
*
discretionary trusts (where the trustees select who, from a class of beneficiaries, is to
benefit, and how much each will receive, eg ‘on trust for such of my children and in such
shares as my trustee shall select’); and
*
trusts with successive interests, such as a trust to pay the income to the testator’s or
testatrix’s spouse for life, remainder to the children.
Power to accept receipts from or on behalf of minors in wills?
Under the general law, an infant cannot give a good receipt for a legacy or share of the
estate. However, the Children Act 1989 allows parents and guardians to give a good receipt
to PRs on the infant’s behalf.
There are often tensions within families and a testator or testatrix may not be happy for a
parent or guardian to give a good receipt for a legacy. In such a case, the will should be
drafted to leave a legacy to trustees to hold for the benefit of the minor rather than to the
child directly. Alternatively, the will may include a clause allowing the PRs to accept the receipt
of the child if the child is over 16 years old. The provision may be incorporated into the legacy
itself or may be included in a list of powers in the will.
Other possible powers to include in wills?
- Power to charge
- Extended power to appropriate assets without consent of legatee
- Power to insure assets
- Power to accept receipts from or on behalf of minors
- Self- dealing
Power to charge in wills?
If the testator wishes to give the executors (and trustees) power to charge remuneration,
the power can either be included as part of the appointment clause or with the other
administrative provisions (see 5.5.1). When drafting such a clause it is important to be clear
whether a person engaged in any profession or business can charge for time spent on the
administration (for example, a brain surgeon) or whether only a person whose profession
involves administering estates and trusts can charge (for example, a solicitor or accountant).
Extended power to appropriate assets without consent of legatee in wills?
Section 41 AEA 1925 gives PRs the power to appropriate any assets in the estate in or towards
satisfaction of any legacy or any interest in residue provided that the appropriation does not
prejudice any beneficiary of a specific legacy. Thus, if the will gives a pecuniary legacy to a
beneficiary, the PRs may allow that beneficiary to take chattels or other assets in the estate up
to the value of their legacy, provided that these assets have not been specifically bequeathed
by the will. Section 41 provides that the legatee to whom the assets are appropriated (or their
parent or guardian if they are a minor) must consent to the appropriation.
It is common to remove the need for the legatee’s consent. This provision is commonly
included in order to relieve the PRs of the duty to obtain formal consent. Nevertheless, the PRs
would informally consult the beneficiaries concerned.
Power to insure assets in wills?
PRs have a duty to preserve the value of the estate. Section 19 TA 1925 (as substituted by the
TA 2000) gives PRs and trustees power to insure assets against all risks, to the full value of the
property, and to pay premiums out of income or capital.
It is not necessary to amend the statutory provision. However, including an express provision
makes life easier for lay PRs who will be able to see from the will itself exactly what they can do.
Why have a self-dealing power in wills?
The fiduciary position of PRs and trustees prevents them from entering into any transaction
where their duties and personal self- interest conflict. For example, purchasing property, which
is part of the estate or the trust, would breach their fiduciary duty. An express clause in the will
may permit self- dealing by the trustees. One situation where it is important to include such a
clause is where the executors or trustees are also beneficiaries.
Powers to include for trustees in wills?
- Power to appropriate assets
- The power to invest
- Power to purchase land
- Power to sell personalty
- Power to use income for maintenance of beneficiaries
- Power to use capital for the advancement of beneficiaries
- Control of trustees by beneficiaries
- Trusts of land
How is an attestation clause written?
Signed by me [testator’s name]
in our joint presence and then by us in [his/ hers]
Taking instructions from a third party when drafting a will?
Paragraph 3.1 of the SRA Code of Conduct for Solicitors, RELs and RFLs requires:
You only act for clients on instructions from the client, or from someone properly
authorised to provide instructions on their behalf.
In the case of a will, solicitors should not take instructions from anyone but the client as the
dangers of misunderstanding or deceit are obvious. It would not be in the best interests of the
client to take instructions from an intermediary.
When might a client leaving a gift of significant value to the solicitor in a will not be considered an own interest conflict?
If the solicitor is satisfied the client has taken independent legal advice regarding making the gift
If the solicitor’s ability to advise could not be said to be affected by the financial interest, e.g. drawing up parents will where solicitor and siblings are treated equally
What should a lawyer do if a client wants to appoint them as an executor?
Principle 7 of the Principles requires you to act in the best interests of each client. In
this context this means not encouraging clients to appoint you or the business you
work for as their executor unless it is clearly in their best interests to do so.
In some cases it might be beneficial for a client to appoint a solicitor to act as an
executor – for example, if their affairs are complex, or there are potential disputes in
the family. However, in other cases there may be little or no advantage to the client –
for example, if their estate is small or straightforward. A professional executor is likely
to be more expensive than a lay person and the client should be advised about this.
Before drafting a will which appoints you or your business (or someone else in the
business) as the executor(s), you should be satisfied that the client has made their
decision on a fully informed basis. This includes:
*
explaining the options available to the client regarding their choice of executor;
*
ensuring the client understands that an executor does not have to be a professional
person or a business, that they could instead be a family member or a beneficiary
under the will, and that lay executors can subsequently instruct a solicitor to act
for them if this proves necessary (and can be indemnified out of the estate for the
solicitors’ fees);
*
recording advice that is given concerning the appointment of executors and the
client’s decision.
‘testate’?
- If the deceased’s will covers their entire succession estate
Partial intestacy?
- If the will does not cover the entire estate, the deceased is ‘partially intestate’
Taper relief rates?
