Wills

Question 1

What property is NOT included in succession estate?

Answer 1

• Donationes mortis causa (gift made in contemplation of death)
• Discretionary pension scheme benefits
• Insurance policies written in trust for another person
• Statutory nominations (Societies)
• Property held as beneficial joint tenants
• Some other beneficial interests under trusts
  Property owned as joint tenants (eg. house, bank account -> passes to the surviving spouse)

Question 2

distribution under intestacy if there is no spouse or issue

Answer 2

Parents (1)
Siblings of whole blood (share both parents) on the statutory trusts (2)
Siblings of half blood (share one parent) on the statutory trusts (3)
Grandparents (4)
Uncles and aunts of whole blood (whole blood siblings of a parent) on the statutory trusts (5)
Uncles and aunts of half blood (half blood siblings of a parent) on the statutory trusts (6)
The crown as bona vacantia (7)

Question 3

intestacy statutory trust - contingency limb

Answer 3

Each entitled beneficiary must survive the intestate and reach the age of 18 in order to inherit. Until this requirement is satisfied, the beneficiary has a contingent interest.

Question 4

intestacy - substitution limb

Answer 4

If an entitled beneficiary dies before the intestate that beneficiary’s own issue can inherit in their place

Question 5

Issue - who’s included

Answer 5

Means children, grand-children etc. (+ those conceived but not yet born)
Adopted children are issue of their adopted (not biological parents)
Step-children (or those treated as children) are NOT included unless they were legally adopted by the intestate

Question 6

how long a spouse needs to survive their partner to inherit under intestacy rules?

Answer 6

They need to survive 28 days (if not they are treated as predeceased the deceased) - this does NOT apply to a will

Question 7

Spouse + issue - who gets what in intestacy

Answer 7

Spouse: chattels, statutory legacy (322), ½ of the residue
Issue ½ of the residue on the statutory trust

Question 8

joint tenants vs tenants in common property and intestacy

Answer 8

Joint tenants - NOT part of the estate, passes to surviving spouse through survivorship
Tenants in common - share of the deceased included in the succession estate

Question 9

what is EXCLUDED from being a chattel

Answer 9

Money or securities for money
Property used by the intestate at their death solely or mainly for business purposes
Property held at the death of the intestate solely as an investment

Question 10

Testamentary capacity - Banks v Goodfellow

Answer 10

The testator must
Understand the nature of the act and its effects
Appreciate the extent of the property of which they are disposing (broad effects, not details)
Understand and appreciate the moral claims to which they ought to give effect (generally, not required to recall every item); and
have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will. (unless the disorder has no effect on the terms of the will)

Question 11

when do you need to have testamentary capacity

Answer 11

Capacity should be present at the time of giving instructions and also at the time of execution (meaning: when its being signed)
Medical practitioners should asses capacity of elderly or seriously ill
Presumption of capacity if will is validly executed

Question 12

Exception to Banks v Goodfellow rule (Parker v Fealgate)

Answer 12

Testator who lacks capacity at the time of execution can still make a valid will if they
Had testamentary capacity at the time they gave instructions for the preparation of the will
The will was prepared in accordance with those instructions
At the time of execution, the testator understood they were signing a will for which they had previously given instructions

Question 13

wills - knowledge and approval

Answer 13

by singing a will they want to give effect to the document they are signing
if signature at the end of the will then presumption of knowledge and approval

Question 14

S.9 formalities

Answer 14

Presumption of validity if a will is properly executed

Requirements
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.

Question 15

can you make gifts to attesting witnesses?

Answer 15

NO - those gifts are void

Question 16

Specific gift (ademption)

Answer 16

Specific - particular item owned by the deceased at the date of death (has ‘my’ in front of it usually)
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.

Question 17

General gift (ademption)

Answer 17

General - a gift of property which is not distinguished from property of a similar type (has ‘a’ in front of it usually)
This gift does not fail, and PRs will buy them an item

Question 18

demonstrative gifts

Answer 18

Demonstrative - the will directs should be paid out of a specified fund (like from a specific bank account)
Doesn’t fail, PR will give them money from a different source

Question 19

pecuniary gifts

Answer 19

money (can be specific or general)

Question 20

class gifts - general rule on class closing and exception

Answer 20

General rule: the class closes when any one member of the class first becomes entitled in possession
Example: so like if they need to reach 21 yo and the first one does than more people cannot be included in the class following this
Exception: if there is no contingency (at leat 1 person already satisfied the contingency when the testator died) -> the class closes on the date of death

Question 21

Lapse

Answer 21

Beneficiary predeceases the testator -> the gift fails
When residuary gift lapses -> results in full or partial intestacy (that’s why a will should have substitution provisions to prevent this)

Question 22

S.33 - preventing lapse

Answer 22

Gifts to issue
The rules:
(a) a will contains a devise or bequest to a child or remoter descendant of the testator; and
(b) the intended beneficiary dies before the testator, leaving issue; and
(c) issue of the intended beneficiary are living at the testator’s death,
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.

Question 23

cy-pres doctrine

Answer 23

If the charities the testator does not exist -> PRs can give the money to a similar charity

Question 24

what to do if a client wants to leave you or your family member a gift in their will?

Answer 24

MAIN POINT: The solicitor should refuse to act unless the client takes independent legal advice regarding the bequest

Question 25

what to do if you doubt your client's testamentary capacity?

Answer 25

If testamentary capacity is in doubt the testator’s consent should be obtained to approach their medical practitioner for confirmation of capacity and to make a record of the findings. The purpose of the assessment and the test for testamentary capacity should be explained to the medical practitioner so they are able to make a decision. If testamentary capacity cannot be confirmed: a will should not be prepared. An attendance note confirming there were no concerns may be useful evidence later on should the will be challenged.

Question 26

Incorporating unexpected documents into a will - criteria + does the document itself need to comply with s.9 formalities? will the document be made public?

Answer 26

a) 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) b) The will must refer to the document as being in existence at the time of execution c) The document must be clearly identified in the 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.

Question 27

Letters of wishes - are they binding? do they form part of the will?

Answer 27

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. 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.

Question 28

when are alterations made by another person valid?

Answer 28

Alterations made by another person are invalid (unless intended by the testator and made in their presence and at their direction).

Question 29

general rule on alterations post-execution

Answer 29

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. The alteration is ignored and the will with original wording apparent is submitted to probate.

Question 30

general rule on alterations before a will is executed

Answer 30

valid and enforceable

Question 31

how to make a valid alteration post-execution of a will

Answer 31

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. 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.

Question 32

exceptions to the general rule on alterations

Answer 32

Where a blank space has been completed there is a presumption that this occurred before execution. 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. 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.

Question 33

conditional revocation

Answer 33

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. 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 court can find that the testator only intended to revoke the original gift if the substitution (£100) was successful. However, if the addition of £100 is not a valid alteration (i.e. it was made after execution or cannot be proved to have been made before) then the substitution is unsuccessful, and if the substitution is not successful there is no valid revocation of the original gift. The original gift, if it can be ascertained, should be given effect to and extrinsic evidence is permitted to establish the original wording.

Question 34

how to make a valid codicil

Answer 34

s.9 formalities

Question 35

what does a codicil do?

Answer 35

Codicils can be used to create, edit or revoke provisions in a will

Question 36

to what extent does a codicil revoke a previous will?

Answer 36

The codicil will only revoke an earlier will to the extent there is inconsistency between them

Question 37

codicil republishes a will - effect of this

Answer 37

When a testator executes their codicil this acts to ‘republish’ the will (and any codicils) to which it expressly refers. The will is given effect to as if it had been executed on the date on which the codicil was executed. Example testator’s brother Alan had two sons at the date of the will but three sons at the date of the codicil, the youngest son at the date of the codicil would benefit. testator had an expensive painting in the hallway of his house when the will was executed but had replaced this with a cheap print by the time the codicil was executed, the beneficiary would inherit the print.

Question 38

s.15 wills act and codicils

Answer 38

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. S15 WA 1837 applies to a codicil in the same way as a will. So a witness to a codicil (or their spouse) must not benefit under either the original will or codicil

Question 39

can a codicil confirm alterations made after execution of a will?

Answer 39

YES The amendments must be made before the codicil is executed, and the codicil must expressly refer to the alterations it confirms.

Question 40

can a due execution of a codicil validate a will that didn't comply with s.9 formalities?

Answer 40

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.

Question 41

can a codicil revive a will?

Answer 41

yes

Question 42

codicil revokes all/part of a will, and the codicil itself is then subsequently revoked - what is the effect?

Answer 42

this would not automatically re-instate the terms of the will that had been revoked by the codicil.

Question 43

revocation by destruction - requirements, do you need capacity to do this, does it need to be a physical act or can you just write revoked on the will, do you need to destroy the original or can you destroy a copy, what if other person destroys it

Answer 43

Revocation by destruction 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. One without the other is ineffective. The testator requires the same testamentary capacity to revoke a will as to make a valid will. A physical act of destruction is needed; writing ‘revoked’ on the will would not be effective. 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. The original will must be destroyed rather than a copy. If another person destroys the will this will not be effective unless it is at the direction of the testator and in his presence.

Question 44

absolute vs conditional intention to revoke

Answer 44

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.

Question 45

missing or damaged wills - presumptions

Answer 45

Missing - the testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise 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 will have the burden of rebutting a presumption of revocation

Question 46

to what extent does a new will revoke a previous will impliedly?

Answer 46

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.

Question 47

mutual wills

Answer 47

mutual will: 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.​

Question 48

mirror wills

Answer 48

Wills that mirror each other each couple makes a will that leaves their estate to the survivor of them, but if the other does not survive the assets pass to their children. 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.

Question 49

effect of marriage on a will

Answer 49

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. equivalent effect for a testator who enters into a civil partnership.

Question 50

how to make a successful will in contemplation of marriage?

Answer 50

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 A will containing this clause is effective from execution and not revoked by the testator’s later marriage

Question 51

effect of divorce on a will

Answer 51

If a married testator divorces their spouse (or there is a dissolution of their civil partnership) the court order confirming the divorce (final order) or dissolution automatically operates as a limited/partial revocation of their will. By virtue of s18A WA 1837 (s18C for civil partnerships) the will takes effect as if the former spouse or civil partner had died on the date of the court order unless the will expressly states otherwise. This means: an appointment of the former spouse/civil partner as executor or trustee is not effective; and a gift in the will to the former spouse or civil partner will fail. 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. Section 18A/C only affects wills made prior to a divorce or dissolution of a civil partnership. Any will made afterwards is unaffected and the testator can make whatever provision they think fit for their former spouse/civil partner.

Question 52

who bears the tax liability for gifts under a will?

Answer 52

residuary estate

Question 53

who pays the cost of transfer and maintenance of asset from the date of death ?

Answer 53

the specific beneficiary

Question 54

who pays a charge if there is a charge over the property like a mortgage?

Answer 54

the person who gets the property

Question 55

requirements for bringing an IPFDA claim

Answer 55

Be within the jurisdiction of the IP(F)DA 1975 (domiciled in England or Wales) Demonstrate that they fall within a recognised category of eligible applicants. Make their claim within the prescribed time limit. (within 6 months from the grant of probate; but the Court has a discretion to extend the time limits)

Question 56

who can bring an IPFDA claim

Answer 56

A spouse / civil partner of the deceased. A former spouse / civil partner who has not remarried or formed a subsequent civil partnership. A person (other than a spouse/civil partner) who cohabited with the deceased as if they were spouses / civil partners for two years prior to their death. A child of the deceased. (N.B. Adopted children are recognised as the children of the adopters for all legal purposes. Adoption severs legal ties with the birth family.) Any person who was treated by the deceased as a child of their family. (This might include a step-child for example). Any other person who was maintained (wholly or partly) by the deceased immediately before their death.

Question 57

IPFDA - meaning of maintenance

Answer 57

financial maintenance of the applicant. It is not sufficient that the deceased was providing the applicant with emotional or other forms of support An applicant who falls within this category is treated as being maintained by the deceased “only if the deceased was making a substantial contribution in money or money's worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature.

Question 58

IPFDA grounds for a claim

Answer 58

that the deceased’s will did not make reasonable financial provision for the applicant; and/or that the distribution of the deceased’s estate under the intestacy rules fails to make reasonable financial provision for the applicant.

Question 59

IPFDA standards

Answer 59

Surviving spouse standard (extended to divorced who did not remarry) ‘Such financial provision as it would be reasonable in all the circumstances for a husband or wife or civil partner to receive whether or not that provision is required for his or her maintenance.’ Maintenance standard ‘Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his/her maintenance.’

Question 60

Variation

Answer 60

Definition: direction from an original beneficiary, to the deceased’s PRs, to transfer property that the beneficiary is entitled to under the terms of a will or the intestacy rules to another person instead. Conditions for making a variation made by the original beneficiary in writing (a deed is not required but frequently used) within the two years following the deceased’s death contains an express statement by the beneficiary confirming s142 should apply not be made for consideration in money or money’s worth Effect for inheritance tax: the gift from the original beneficiary is read-back to the date of the deceased’s death and treated for IHT purposes as having been made by the deceased to the new beneficiary (instead of being made by the original beneficiary to the new beneficiary Effect for capital gains tax: the gift is ‘written-back’ to the deceased’s date of death and treated as having been made by the deceased.

Question 61

Disclaimer

Answer 61

Definition: refusal to accept property to which a beneficiary is entitled either under the intestacy rules or under the terms of a will. A beneficiary can only disclaim before acceptance A beneficiary can only disclaim the whole gift Effect for inheritance tax: the same as for variation Effect for capital gains tax: the same as for variation

Question 62

precatory trust

Answer 62

Gift of chattel subject to a moral obligation (no legal obligation) to share it with others (the beneficiary is not penalised for sharing with others thanks to this provision) Tax if the original beneficiary makes the distributions intended by the testator within 2 years of the testator's death, these are treated for IHT purposes as gifts made by the testator’s will and not the original beneficiary. Unlike variations and disclaimers, no written election is necessary for this to apply and the writing back effect for IHT happens automatically. No provisions for CGT