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SQE1 FLK 2 > Wills 2 > Flashcards

Wills 2 Flashcards

1
Q

What are the legal requirements of a testator to make a valid will?

A

Testator must be over 18, married minor, or in military service. Must have testamentary capacity, knowledge and approval, and formal requirements met.

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2
Q

What is required for testamentary capacity?

A

Testator must understand what they’re doing, what they’re disposing of, and moral claims. They must have no disorder of the mind affecting their faculties.

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3
Q

When must a testator have testamentary capacity?

A

At the time the will is executed. Still valid if capacity existed when instructions were given and understood at execution.

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4
Q

What is the golden rule in respect of testamentary capacity?

A

If in doubt, get a medical opinion.

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5
Q

What must a person do to challenge a will on grounds of capacity?

A

Provide evidence, as capacity is presumed.

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6
Q

Can a person who lacks capacity still make a will?

A

Yes, if the court is persuaded it is in the best interests of the person.

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7
Q

Is knowledge and approval presumed if the testator had testamentary capacity?

A

Yes.

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8
Q

When will there be no presumption of knowledge and approval?

A

In cases of blindness, illiteracy, signing by someone else, or suspicious circumstances.

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9
Q

What happens if part of the will was subject to undue influence?

A

That part is invalid, but the remainder may be effective if it does not upset the whole tenor.

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10
Q

What is undue influence?

A

When a testator is coerced into making a will against their judgment and true intention.

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11
Q

What considerations are taken into account for undue influence?

A

No presumption of undue influence; burden of proof lies with the person asserting it.

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12
Q

What are the legal requirements of a will?

A

Must be in writing, signed by the testator or by another in their presence, and witnessed by two or more witnesses.

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13
Q

What is an attestation clause?

A

Describes the circumstances under which the will was executed; not legally required.

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14
Q

What if the will contains gifts to an attestor?

A

Gifts will be void under s.15 unless there are two other witnesses who are not beneficiaries.

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15
Q

What if the will contains gifts to a spouse of an attestor?

A

They cannot inherit if they are an attestor.

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16
Q

Are there any restrictions on who can be appointed as executors?

A

Yes, a minor or someone who lacks mental capacity cannot act.

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17
Q

How many executors must there be?

A

At least 1 and a maximum of 4 can apply for grant of representation.

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18
Q

What happens if a spouse is executor but they divorce the deceased after the will was made?

A

The appointment will become ineffective.

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19
Q

How many trustees are required to act?

A

At least two.

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20
Q

Can executors charge for their time?

A

Only professional executors and trustees may charge for their time.

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21
Q

What happens if a testator dies with more than one will without a revocation clause?

A

The later will revokes the earlier will only to the extent that it is inconsistent.

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22
Q

What is the role of the PR?

A

To collect the deceased’s assets, administer the estate, pay debts, and distribute assets to beneficiaries.

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23
Q

What happens if the will gifts a specific item which the testator no longer owns at death?

A

The gift adeems and the beneficiary receives nothing.

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24
Q

What happens if the will gifts a specific item and it’s not clear what that item is?

A

The gift may fail for uncertainty; best to include an alternative.

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25
Q

What happens to property held as joint tenants?

A

This property passes outside of the succession estate to the other party.

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26
Q

Are assets held as tenants in common included within the succession estate?

A

Yes, an individual will own a share of an asset held as tenants in common.

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27
Q

What is a general legacy?

A

A gift of property not distinguished from similar property.

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28
Q

Will a pecuniary gift fail if stated to be made from a specific bank account that has since closed?

A

No, the gift will be paid as a general legacy.

29
Q

What are residuary legacies?

A

A gift out of the estate not already disposed of under the will or codicil.

30
Q

Why is the phrase ‘and if more than one in equal shares’ used when gifting the residuary?

A

To prevent partial intestacy if one of the beneficiaries predeceases the testator.

31
Q

When does the will speak from under the general rule?

A

From the date of death unless a contrary intention is shown.

32
Q

What effect does ‘my’ have on a collection that is capable of growing?

A

The collection includes items at the date of death despite the use of ‘my’.

33
Q

When does the will speak from in terms of people?

A

The date of execution, not the date of death.

34
Q

Is an individual gift made free of IHT in the absence of any express provision?

A

Yes, IHT is generally taken out of the residue.

35
Q

What expenses do beneficiaries bear in relation to a gift unless specifically stated otherwise?

A

Cost of delivery and expenses of upkeep/preservation from date of death.

36
Q

What is the general rule that applies to property subject to a secured debt/charge?

A

The charge passes with the asset under s.35.

37
Q

What if the meaning of a will is ambiguous?

A

The court can provide a ruling and extrinsic evidence can be provided.

38
Q

When does the ‘class close’ for a gift to a class of beneficiaries?

A

When any member of the class first becomes entitled in possession.

39
Q

What does a vested gift mean?

A

A gift given outright and absolutely with no conditions.

40
Q

What does a contingent gift mean?

A

Where a beneficiary must satisfy a condition before inheriting.

41
Q

What happens if the beneficiary dies before the testator?

A

The gift to them will fail.

42
Q

What happens if the beneficiary is the testator’s own issue and dies before the testator?

A

The gift will be taken as given to the beneficiary’s issue in equal shares unless a contrary intention appears.

43
Q

What happens if a charitable gift is given but the charity no longer exists at the date of death?

A

The cy-pres doctrine applies, allowing the gift to be given to a similar charity.

44
Q

What categories of deceased can the IPFDA 1975 apply to?

A

Only those domiciled in England and Wales.

45
Q

What categories of beneficiaries can the IPFDA 1975 apply to?

A

Spouse, children, and mistresses maintained by the deceased.

46
Q

When must an application under IPFDA 1975 be made?

A

No more than 6 months after the grant of representation.

47
Q

When can the time limits for an application under IPFDA 1975 be extended?

A

The court has discretion to extend for special reasons.

48
Q

Where must an application under IPFDA 1975 be made?

A

High Court or County Court, depending on the case.

49
Q

What property does IPFDA 1975 relate to?

A

The succession estate and property with a general power of appointment.

50
Q

What are the grounds for an IPFDA 1975 application?

A

The will did not make reasonable financial provision or intestacy rules fail to do so.

51
Q

When is an order under IPFDA 1975 deemed to take effect?

A

From the date of the deceased’s death.

52
Q

What is the standard of financial provision for the surviving spouse?

A

Reasonable regardless of maintenance.

53
Q

What is the standard of financial provision for anyone other than the surviving spouse?

A

Such financial provision as is reasonable for their maintenance.

54
Q

When can the surviving spouse standard in IPFDA 1975 be expanded?

A

If the former spouse has not remarried or if divorce occurred within 12 months of death.

55
Q

What common guidelines must the court consider for maintenance level?

A

The applicant’s financial resources, needs, and obligations of the deceased.

56
Q

What additional guidelines must the court consider for the spouse’s maintenance?

A

Age, duration of marriage, contribution made, and expectations in a divorce.

57
Q

What additional guidelines must the court consider for cohabitees’ maintenance?

A

Age and length of cohabitation, and contributions made.

58
Q

What additional guidelines must the court consider for children’s maintenance?

A

The manner of education and how the deceased previously maintained them.

59
Q

What is the effect of a variation?

A

The gift is treated as having been made by the deceased to the new beneficiary for IHT purposes.

60
Q

What are the conditions to make a variation?

A

Must be in writing, express statement for s142, within 2 years of death, and not for consideration.

61
Q

When can PRs refuse to approve the variation?

A

If it creates an IHT charge and funds are insufficient.

62
Q

How often can each asset be varied?

A

Once.

63
Q

Can a minor/person who lacks mental capacity vary?

A

Yes, but needs court approval.

64
Q

When can a variation be made?

A

Before or after inheritance acceptance.

65
Q

When can a disclaimer be made?

A

Only before acceptance and only for the whole gift.

66
Q

What is a Precatory Trust?

A

A gift made with a wish expressed on how the beneficiary should pass on those assets.

67
Q

What are the IHT rules on Precatory Trusts?

A

If acted on within 2 years of death, treated as gifts made by the testator’s will.

68
Q

What are the CGT rules on Precatory Trusts?

A

No special rules; redistribution is treated as a disposal by the original beneficiary.

SQE1 FLK 2 (19 decks)

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