Wills Flashcards
What is needed for a valid will?
The person making the will must have:
- capacity at the time will was made
- intended to make a will and
- executed the will with certain formalities
If any missing, can’t be offered into probate
What is the test for capacity when making a will?
Must be at least 18.
Mental capacity presumed unless someone challenging the validity of the will proves that Testator lacked capacity.
Test - by statute, a person lacks capacity if:
- at the material time
- the person is unable to make a decision for themselves in relation to the matter in question
- because of an impairment or disturbance in the functioning of the mind or brain.
To have capacity, what must the testator understand?
At time of execution, must understand:
- nature of the act (making a will and effects)
- extent of property
- claims to which ought to give effect (no need to give effect but understand who these people would be)
When determining capacity, when is the relevent time?
When the will is signed.
Exception where testator doesn’t have mental capacity at date of execution but did have capacity when giving instructions. If will prepared in accordance with instructions and at time of execution, testator understood that signing will that instructions previously been given for, deemed to act with capacity.
Eg Alzheimer’s.
How can challenges to capacity be prevented where suffers from medical condition that may affect capacity?
Best pratice:
- arrange for doctor to be present at signing
- doctor sign as witness or provide note saying that at time executed was capacity of understanding nature and effect.
- make file note explaining circumstance at execution.
When is intention to make a will present?
Where testator had:
- general intention to make a will and
- specific intention to make particular will (know and approve contents of the will when executed)
Is there a presumption of knowledge and approval?
Yes, presumed that if testator had required mental capacity, acted with requisite knowledge and approval.
Doesn’t apply in 2 situations:
1) Testator is blind or illiterate or will signed on testator’s behalf or
2) there are suspicious circumstances such as where drafter substantially benefits from will. Gift will usually fail unless evidence of testator’s knowledge and approval put forward by recipient of gift.
Can the presumption of knowledge and approval be rebutted?
Yes, Can be challenged but challenger has the burden of proving lack of proper intention, usually by showing fear, fraud, undue influence or mistake
What will the court look at when deciding if a will is invalid for lack of knowledge or approval?
The court will consider factors such as:
- whether the will was easy to understand
- surrounding facts such as whether T asked 2 people to witness, indicating knew it was a will
- whether any suspicious circumstances surrounding will
How should a solicitor handle when a client wants to leave them a gift in their will?
If regulated by SRA have to act with honestly and integrity.
Should refuse significant gifts unless client seeks independent legal advice.
May result in conflict.
What is duress and what effect does it have on a will?
Duress is where the testator has been injured or threatened with injury.
Will is not regarded as an act of the testator and will not be admitted to probate.
Will will only be admitted to probate if the court pronounces it is valid and issued a grant in solemn form.
How does an executor obtain a grant in solemn form?
Executor puts forward will in a claim where ask court to determine the validity of the will.
It’s legal action to authenticate a will.
All interested parties will be a party to the claim. After hearing all evidence court will pronounce as to validity. If pronounced valid, will order issue of grant of probate.
What undue influence?
Something that overpowers the volition of the testator. More than persuasion. Need to prove coercion or pressure that overpowered freedom of action of testator.
Not presumed, court will interfere if appears testator surrendered to intolerable pressure. More inclined to find if testator mentally or physically weak.
What are the formalities required for a valid will?
Will must be:
- in writing
- signed by testator (or another person in testators presence and by their direction)
- signed or acknowledged by the testator in the presence of 2 or more witnesses present at the same time
- signed or acknowledged by each witness in the presence of the testator
What is a privileged will?
A privileged will is a type of will that can be made without the usual formalities required for a standard will. It’s a quick and flexible way for certain individuals to make their wishes legally binding.
Privileged wills are typically made by members of the armed forces or merchant seamen who are engaged in active military service or similar conditions. They can be oral or written, and do not require witnesses or signatures.
Must both witnesses be present at same time with testator when sign will?
No
What is an attestation clause?
Clause that confirms requirements met.
Eg ‘signed by the testator in our presence and then by us in his’
Special attestation clause needed if testator is blind or illiterate. Evidences read to them, they understood and approved contents then signed or signed by another person in his presence.
If not included, person who is offering will to probate must prove that formalities were followed. Usually by witness testimony/statement.
What are signature requirements?
- can be actual signature
- initials
- stamped signature
- mark
- pencil
- unfinished signature
- words eg ‘your loving mother’
Where should the signature be placed on a will?
Usually at end but can appear anywhere.
What are requirements if someone signing on testators behalf??
Must be in presence of and direction of testator.
May be a witness but doesn’t need to be.
Must indicate that signed at testators request. Should include in attestation clause
What are witness requirements for a will?
- Witness must be capable of understanding significance of being witness to signature. No need to know contents or even that it is a will.
- Blind person can’t be a witness
- Mentally unsound person can’t be a witness but subsequent loss of capacity doesn’t make invalid if competent at time of witnessing.
- beneficiary or their spouse shouldn’t be witness as may cause gift to them to fail
Can documents be referred to in a will?
Yes but document must exist at the date of the will and be referred to in the will. Cannot be future intention to make a list etc.
Can a will be amended before execution?
Yes
Can a will be amended after execution?
Yes but more formalities to be effective
What is required for a valid amendment to be made after execution?
Needs to be executed in same formalities as will.
- T needs to sign with 2 witnesses
- must have capacity and intention
What happens if alteration made without proper formalities?
If unattested, presumed to have occurred before execution and original gift applies unless filling in a blank.
Solicitor will see if can make out originally words by natural means eg magnifying glass, if apparent then admitted to probate rather than amendment. If not and original words obliterated, admitted with blank space where words obliterated. Usually results in original gift being revoked.
What is a codicil?
Brief document that adds to, amends or partially revokes an existing will.
What are the requirements of a valid codicil?
- must make reference to the will
- must meet requirements of a valid will, eg formalities, capacity
- clause should be included confirming the unamended part of the will
- codicil may remedy a gift which was void due to B witnessing will.
When will a will be revoked?
May be:
Automatic by law
- upon married or civil partnership unless appears that when will made, testators was expecting to marry a particular person and that they indented that all or part of their will should not be revoked by marriage. Express statement should be included.
- divorce, dissolution or nullity does not revoke but law treats it as former partner has died. Appointment as executor not effective and gift lapses.
Deliberate act of testator
- executing later will or codicil, revokes partially or wholly. Later will or codicil impliedly revokes only to the extend that it is inconsistent with or repeats the terms of earlier document. Should contain revocation clause.
- destruction, burning, tearing or otherwise destroyed by testator or by some person in his presence and by his direction with intention of revoking. Required act and intention.
What counts as act of destruction?
- not writing cancelled or revoked.
- if part destroyed, may only result in revocation of that part
- if vital part destroyed eg signature slice, may be effective.
- if done by someone else, must be at direction of testator and in their presence.
What counts as intention to revoke?
Testator must have intention to revoke at time of wills destruction. Mental capacity requirement same as when making will.
If will found mutilated at date of death, presumed that done by testator with intention of revoking.
If will last known to be in testator’s possession but can’t be found at date of death, presumed that it has been destroyed by testator with intention of revoking it.
Rebuttable however.
What is the doctrine of dependent relative revocation?
Court may apply doctrine of dependent relative revocation to save a will.
Occurs where intention to revoke conditional upon a future event eg later execution of new will. If that event didn’t take place, original will may be valid even if destroyed if it can be reconstructed from copy or draft.
What is a mutual will?
Wills made by 2 or more people usually with same clauses further to agreement between them to make the will and that they are irrevocable without consent of other. Contract between them.
Agreement creates constructive trust in favour of beneficiaries.
Means that if 1 of them dies and other changes will, beneficiary harmed by the change may apply to court for an order for recipient under changed will to transfer it to the person that would have been beneficiary under original will.
From what date does the will speak?
Gift determined at the date of death, unless contrary indication in will. Eg ‘now’ or ‘at present’
Beneficiaries determined at date of wills execution (subject to class closing rules)
What are the different types of gifts?
Specific legacy - specific part of estate identified in will.
General legacy - doesn’t identity particular item
Pecuniary legacy - gift of cash. May be general (doesn’t specify course) or demonstrate (identifies source)
Residual legacy - everything left not otherwise disposed by gifts or taken up by payment of liabilities.
What is ademption?
Doctrine stating that a specific gift will adeem if no longer part of estate, subject to binding contract for sale or no longer meets description in will.
Change in substance will cause to adeem but change in name or form doesn’t.
What happens if specific gift isn’t in estate at date of death?
Gift adeems.
Issue where specific gift made described in will but at time of death different item that meets same description.
In the case of a specific gift such as ‘my car’ testator taken as showing contrary indication. Court may presume that it will be the car the testator had at the time the will was executed, not at date of death. So if that car gone, adeems.
Language in will can avoid this.
May depend according to circumstances, if property can vary in value eg my jewellery, taken as at death.
How does a gift lapse?
Where beneficiary predeceases the testator.
Common practice to include substitutions gift in will, if there is one, gift will go to substitute beneficiary and won’t lapse.
If lapses, falls into residue. If residuary gift lapses, passed under intestacy rules.
People in will taken as at date of execution so gift to eldest daughter of Mandie is taken as at date will made, so if Sophie dies before testator, gift doesn’t go to Layla.
Will a gift to joint tenants lapse if one of them predeceases testator?
No, only if they all die before testator. If gift made to A &B jointly and A dies before T, whole gift passes to B.
Doesn’t apply if words of severance/shares. If that happens, A’s share lapses and B takes only their share.
What’s the law of commorientes?
Where it is impossible to determine who died first out of testator and beneficiary, the law presumes that younger person outlives older.
What happens when a gift is made to deceased’s issue?
If gift made to testators child or other issue (lineal descendent, eg grandchildren, great grandchildren) and that person dies before testator who leaves living issue.
Living issue receives gift - takes per stirpes.
Includes unborn children. If more than 1, equal shares.
Only applies to testators issue.
May be negated by wording, eg such of my children that survive me
What is a class gift?
Gift of property to decided amongst beneficiaries who fulfil general description eg children of X. Issue with how to divide between Bs or how much to set aside for gifts not certain until X dies.
What are class closing rules?
Developed for vested and contingent interests.
When a class closes, excludes any B not then living.
Class closes when at least 1 B has vested interest to exclusion of those not then living (unborn included)
When do the rules of intestacy apply?
- The deceased died having made no will or no valid will or
- The deceased will doesn’t dispose of all property (partial intestacy) as gift of all or part of residue fails.
Where are the rules for intestacy contained?
S46 Administration of Estates Act 1925
What happens if there is a surviving spouse but no issue?
Spouse entitled to entire estate. Must survive deceased by 28 days.
What happens if there is surviving spouse and issue?
Spouse takes:
- personal chattels absolutely (not cash and business/investment assets)
- £322,000
- 1/2 of residue absolutely
Issue takes other 1/2 of residue once turn 18.
Where there is surviving spouse and issue, what happens to the matrimonial home?
Spouse can require PRs to transfer to them in partial or total satisfaction of their interest. If worth more than entitlement, can still require it to be transferred by pay over difference (equality money) to the estate.
