Wills

Question 1

Is intention to create a will presumed?

Answer 1

Yes, unless the testator was blind or illiterate, or there are suspicious circumstances.

Question 2

When is a will made under duress?

Answer 2

If created as a consequence of the testator being injured or threatened with injury.

Question 3

When is a will made under undue influence?

Answer 3

If the testator’s volition or freedom was overpowered, i.e. coercion rather than persuasion. It must be proven the testator surrendered to intolerable pressure.

More likely to find undue influence if the testator was mentally or physically weak.

Question 4

What are the formal requirements for a valid will?

Answer 4

1. In writing.
2. Signed by the testator in the presence of two witnesses.
3. Signed by the two witnesses in the presence of the testator.

Question 5

When can a person renounce their rights to a grant of probate?

Answer 5

When they have not taken a grant of probate or intermeddled with the estate. This does not affect their position as trustee, but is an all or nothing position.

Question 6

How does a person renounce their rights to a grant of probate?

Answer 6

1. Must be in writing.
2. Must be signed by the executor and a witness.
3. Must contain a statement they have not intermeddled.
4. Filed at HMCTS Probate Service.

Question 7

What does it mean to have power reserved?

Answer 7

The executor can later APPLY for a grant of probate.

Question 8

When is an alteration to a will valid?

Answer 8

If it can be proved it was made before execution. An unattested alteration is presumed to have been made after execution unless filling in a blank space.

Question 9

What are the requirements of a codicil?

Answer 9

1. It must follow the same formalities as a will.
2. It must make reference to the will.

Question 10

What are the 2 ways a will is automatically revoked?

Answer 10

1. Marriage, unless it was clear the testator was going to marry a particular person and they intended the will not be revoked by marriage.
2. Divorce/dissolution does not revoke the will, but treats the spouse as having died on the date of divorce unless a contrary intention is stated.

Question 11

What are the 2 ways a will is revoked as a deliberate act by the testator?

Answer 11

1. Executing a later will or codicil, to the extent it is inconsistent of the terms of the earlier document.
2. Destruction by the testator or someone in his presence, with intention of revocation.

Question 12

What is the presumption if a will is found mutilated on the testator’s death or cannot be found?

Answer 12

That the testator intended to revoke it - this presumption is rebuttable.

Question 13

What does it mean if a gift adeems?

Answer 13

A specific gift fails if it is no longer part of the testator’s estate, is subject to a binding contract for sale, or no longer meets the will’s description.

Question 14

What does it mean if a gift lapses?

Answer 14

If a beneficiary predeceases the testator, the gift will lapse if there is no substitutional gift - otherwise, it falls into the residue.

Question 15

What are the class closing rules?

Answer 15

A class closes when at least one beneficiary has a vested interest.

Question 16

What property passes outside the estate?

Answer 16

• Joint property.
• Life assurance policies.
• Pension scheme death benefits.
• Nominated property up to £5,000.
• Life interests in trust property.

Question 17

What is the spouse’s entitlement if the deceased dies intestate with issue?

Answer 17

1. All chattels.
2. £322,000.
3. Half of the residue.

Question 18

What is the order of entitlement if there is no surviving spouse?

Answer 18

1. Issue on statutory trusts.
2. Parents (equally if both alive).
3. Brothers and sisters on statutory trusts.
4. Brothers and sisters of the half blood on statutory trusts.
5. Grandparents (equally if more than one).
6. Uncles and aunts on statutory trusts.
7. Uncles and aunts of the half blood on statutory trusts.
8. The Crown.

Question 19

Who deals with non-contentious and contentious probate?

Answer 19

• Non-contentious: HMCTS.
• Contentious below £30,000: County Court.
• Contentious above £30,000: Chancery Division of the High Court.

Question 20

How many executors can there be?

Answer 20

1-4

Question 21

What is letters of administration with will annexed?

Answer 21

Obtained when there is a problem concerning appointment of executors.
- Min. 2 administrators required if there is a minor beneficiary or life interest under the will.
- Right to renunciation not lost by intermeddling.
- The person applying must clear off those who have a better right.

Question 22

What is the order of entitlement for letters of administration with will annexed?

Answer 22

1. Trustee of the residuary estate.
2. Any other residuary beneficiary, preferring vested interests.
3. PRs of any residuary beneficiary, but not life tenants.
4. Any other beneficiary or creditor.
5. PRs of any other beneficiary or creditor, but not life tenants.

Question 23

What is letters of administration?

Answer 23

Obtained when the deceased dies intestate or all gifts fail.
- 2 administrators required if there is a minor beneficiary or life interest.
- Maximum of 4 administrators and power cannot be reserved.
- Clearing off rules apply.

Question 24

What is the order of entitlement for letters of administration?

Answer 24

1. Surviving spouse or civil partner.
2. Issue and any predeceased child.
3. Parents.
4. Brothers and sisters and issue if deceased.
5. Half brothers and sisters and issue if deceased.
6. Grandparents.
7. Uncles and aunts and issue if deceased.
8. Half uncles and aunts and issue if deceased.
9. The Crown.
10. Creditors.

1-8 must have a beneficial interest in the estate, and the PRs also have the same right as the person they represent (issue have priority over PRs of a surviving spouse who has died before obtaining a grant, unless beneficially entitled to the whole estate).

Question 25

What is a grant de bonis non?

Answer 25

Second grant to allow the completion of administration of the estate following the death of the sole or last surviving PR - granted to the person who would have been entitled had the PR never taken the grant.

Question 26

When is a grant de bonis non not needed?

Answer 26

If a chain of representation exists - the executor’s executor takes the grant.

Question 27

What must the PR do before applying for a grant?

Answer 27

• Gather personal information about the deceased and their assets.
• Register the death.
• Obtain valuations of assets.
• Notify beneficiaries of potential entitlements.
• Pay IHT.

Question 28

What must the PR do to apply for a grant?

Answer 28

Should be supported by the will, codicils and two extra copies of the will, an official copy of the death certificate, further supporting documents and payment of probate fees.

Question 29

What is a caveat?

Answer 29

Prevents the issue of a grant of representation, and is valid for up to 6 months.

Question 30

What is a citation to take probate?

Answer 30

Used when an executor has lost their right to renounce probate by intermeddling, but has not applied for a grant and does not intend to do so. Once cited, if they still refuse the citer can apply for a court order to pass it over. Can then apply for LAWA.

Question 31

What is a citation to accept or refuse grant?

Answer 31

Used to clear off a person with a prior right who has not applied, and has no intention of applying. Grant can then be issued to the citor.

Question 32

What is an excepted estate?

Answer 32

Estates of UK domiciliaries not exceeding:
- The IHT NRB (£325,000);
- £3 million and the net chargeable estate (deducting liabilities and spouse/charity exemption) does not exceed the NRB; or
- Non-UK domiciliaries whose UK estate consists solely of cash and/or quoted shares of no more than £150,000.
These are exempt from IHT.

Question 33

What are some methods of funding initial IHT payments?

Answer 33

• Banks releasing funds directly to HMRC - at their discretion and can be slow.
• Bank loan, with an undertaking given.
• Loan from a beneficiary.
• Sale of assets if no grant is needed prior to sale, e.g. chattels.
• Insurance policy payments if the proceeds are payable to the estate.

Question 34

Can a PR raise funds?

Answer 34

Yes, by:
- Selling, mortgaging, or leasing estate property to pay administration expenses.
- Appropriating to satisfy legacies or interests in the estate provided the beneficiary consents.
- Investing - as long as diverse and suitable.

Question 35

How are gifts distributed?

Answer 35

• Chattels: By delivery, in return for a receipt.
• Company shares: STF sent with copy of the grant and share certificate.
• Land: Assent in writing, signed by PRs. Beneficiaries must register their interest at HMLR.

Question 36

How can PRs protect themselves from claims from unknown beneficiaries or creditors?

Answer 36

By placing adverts in the London Gazette, local newspapers, and other appropriate newspapers, requesting any interested person contact the PRs’ solicitor within 2 months.
- Should also conduct searches for land held for creditors and bankruptcy declarations against the deceased.

Question 37

How can PRS protect themselves from claims from missing beneficiaries or creditors?

Answer 37

• Make a payment into the court and distribute the rest of the estate.
• Distribute everything with an indemnity from the beneficiaries.
• Benjamin Order, giving PRs leave to distribute based on an assumption set out in the order (full protection).
• Purchase insurance against the risk of a missing claimant appearing - cheaper and quicker than court.

Question 38

What are the accepted categories of applicant under the 1975 Act?

Answer 38

• Surviving spouse.
• Former spouse not remarried, unless clean break divorce.
• Person living with the deceased during the 2yr period before death.
• Surviving child or someone treated as a child (able-bodied, employed adult children less likely).
• Person maintained wholly or partially by the deceased if there was a substantial contribution to their reasonable needs.

Question 39

What are the grounds for determining reasonable financial provision under the 1975 Act?

Answer 39

• Have the will/intestacy rules failed to make reasonable financial provision for the applicant?
• If so, what would be such provision?

Question 40

What is the standard for spouses under the 1975 Act?

Answer 40

What is reasonable in all the circumstances, whether or not required for maintenance - courts consider what would be awarded in a divorced. Can be applied to former spouses if within 12 months of the decree absolute and no final order has been made.

Question 41

What is the standard for non-spouses under the 1975 Act?

Answer 41

Such provision required for their maintenance so they can live decently and comfortably.

Question 42

When can a claim be made under the 1975 Act?

Answer 42

Within 6 months after the issue of the grant, unless the court allows a later claim.