Wills 2 Flashcards
What are the legal requirements of a testator to make a valid will?
Testator must be over 18, married minor, or in military service. Must have testamentary capacity, knowledge and approval, and formal requirements met.
What is required for testamentary capacity?
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.
When must a testator have testamentary capacity?
At the time the will is executed. Still valid if capacity existed when instructions were given and understood at execution.
What is the golden rule in respect of testamentary capacity?
If in doubt, get a medical opinion.
What must a person do to challenge a will on grounds of capacity?
Provide evidence, as capacity is presumed.
Can a person who lacks capacity still make a will?
Yes, if the court is persuaded it is in the best interests of the person.
Is knowledge and approval presumed if the testator had testamentary capacity?
Yes.
When will there be no presumption of knowledge and approval?
In cases of blindness, illiteracy, signing by someone else, or suspicious circumstances.
What happens if part of the will was subject to undue influence?
That part is invalid, but the remainder may be effective if it does not upset the whole tenor.
What is undue influence?
When a testator is coerced into making a will against their judgment and true intention.
What considerations are taken into account for undue influence?
No presumption of undue influence; burden of proof lies with the person asserting it.
What are the legal requirements of a will?
Must be in writing, signed by the testator or by another in their presence, and witnessed by two or more witnesses.
What is an attestation clause?
Describes the circumstances under which the will was executed; not legally required.
What if the will contains gifts to an attestor?
Gifts will be void under s.15 unless there are two other witnesses who are not beneficiaries.
What if the will contains gifts to a spouse of an attestor?
They cannot inherit if they are an attestor.
Are there any restrictions on who can be appointed as executors?
Yes, a minor or someone who lacks mental capacity cannot act.
How many executors must there be?
At least 1 and a maximum of 4 can apply for grant of representation.
What happens if a spouse is executor but they divorce the deceased after the will was made?
The appointment will become ineffective.
How many trustees are required to act?
At least two.
Can executors charge for their time?
Only professional executors and trustees may charge for their time.
What happens if a testator dies with more than one will without a revocation clause?
The later will revokes the earlier will only to the extent that it is inconsistent.
What is the role of the PR?
To collect the deceased’s assets, administer the estate, pay debts, and distribute assets to beneficiaries.
What happens if the will gifts a specific item which the testator no longer owns at death?
The gift adeems and the beneficiary receives nothing.
What happens if the will gifts a specific item and it’s not clear what that item is?
The gift may fail for uncertainty; best to include an alternative.
What happens to property held as joint tenants?
This property passes outside of the succession estate to the other party.
Are assets held as tenants in common included within the succession estate?
Yes, an individual will own a share of an asset held as tenants in common.
What is a general legacy?
A gift of property not distinguished from similar property.
Will a pecuniary gift fail if stated to be made from a specific bank account that has since closed?
No, the gift will be paid as a general legacy.
What are residuary legacies?
A gift out of the estate not already disposed of under the will or codicil.
Why is the phrase ‘and if more than one in equal shares’ used when gifting the residuary?
To prevent partial intestacy if one of the beneficiaries predeceases the testator.
When does the will speak from under the general rule?
From the date of death unless a contrary intention is shown.
What effect does ‘my’ have on a collection that is capable of growing?
The collection includes items at the date of death despite the use of ‘my’.
When does the will speak from in terms of people?
The date of execution, not the date of death.
Is an individual gift made free of IHT in the absence of any express provision?
Yes, IHT is generally taken out of the residue.
What expenses do beneficiaries bear in relation to a gift unless specifically stated otherwise?
Cost of delivery and expenses of upkeep/preservation from date of death.
What is the general rule that applies to property subject to a secured debt/charge?
The charge passes with the asset under s.35.
What if the meaning of a will is ambiguous?
The court can provide a ruling and extrinsic evidence can be provided.
When does the ‘class close’ for a gift to a class of beneficiaries?
When any member of the class first becomes entitled in possession.
What does a vested gift mean?
A gift given outright and absolutely with no conditions.
What does a contingent gift mean?
Where a beneficiary must satisfy a condition before inheriting.
What happens if the beneficiary dies before the testator?
The gift to them will fail.
What happens if the beneficiary is the testator’s own issue and dies before the testator?
The gift will be taken as given to the beneficiary’s issue in equal shares unless a contrary intention appears.
What happens if a charitable gift is given but the charity no longer exists at the date of death?
The cy-pres doctrine applies, allowing the gift to be given to a similar charity.
What categories of deceased can the IPFDA 1975 apply to?
Only those domiciled in England and Wales.
What categories of beneficiaries can the IPFDA 1975 apply to?
Spouse, children, and mistresses maintained by the deceased.
When must an application under IPFDA 1975 be made?
No more than 6 months after the grant of representation.
When can the time limits for an application under IPFDA 1975 be extended?
The court has discretion to extend for special reasons.
Where must an application under IPFDA 1975 be made?
High Court or County Court, depending on the case.
What property does IPFDA 1975 relate to?
The succession estate and property with a general power of appointment.
What are the grounds for an IPFDA 1975 application?
The will did not make reasonable financial provision or intestacy rules fail to do so.
When is an order under IPFDA 1975 deemed to take effect?
From the date of the deceased’s death.
What is the standard of financial provision for the surviving spouse?
Reasonable regardless of maintenance.
What is the standard of financial provision for anyone other than the surviving spouse?
Such financial provision as is reasonable for their maintenance.
When can the surviving spouse standard in IPFDA 1975 be expanded?
If the former spouse has not remarried or if divorce occurred within 12 months of death.
What common guidelines must the court consider for maintenance level?
The applicant’s financial resources, needs, and obligations of the deceased.
What additional guidelines must the court consider for the spouse’s maintenance?
Age, duration of marriage, contribution made, and expectations in a divorce.
What additional guidelines must the court consider for cohabitees’ maintenance?
Age and length of cohabitation, and contributions made.
What additional guidelines must the court consider for children’s maintenance?
The manner of education and how the deceased previously maintained them.
What is the effect of a variation?
The gift is treated as having been made by the deceased to the new beneficiary for IHT purposes.
What are the conditions to make a variation?
Must be in writing, express statement for s142, within 2 years of death, and not for consideration.
When can PRs refuse to approve the variation?
If it creates an IHT charge and funds are insufficient.
How often can each asset be varied?
Once.
Can a minor/person who lacks mental capacity vary?
Yes, but needs court approval.
When can a variation be made?
Before or after inheritance acceptance.
When can a disclaimer be made?
Only before acceptance and only for the whole gift.
What is a Precatory Trust?
A gift made with a wish expressed on how the beneficiary should pass on those assets.
What are the IHT rules on Precatory Trusts?
If acted on within 2 years of death, treated as gifts made by the testator’s will.
What are the CGT rules on Precatory Trusts?
No special rules; redistribution is treated as a disposal by the original beneficiary.
