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Law Of Wills > Wills > Flashcards

Wills Flashcards

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1
Q

Explain the specific legacy is

Explain what demonstrated legacy is

Explain what a general legacy is

Explain a pecuniary legacy is

Explain what the residuary legacy is

A

Specific legacy is an item of a specific item clearly detailed in the will Example my gold wedding ring

I demonstrated legacy Is a legacy that is payable out of a specific fund however if that form doesn’t have enough money in it it is payable out of the general estate

General legacy The gift of a general nature and may not be owned at date of death Which in this case personal representatives would purchase that item payable from the estate

Pecuniary legacy is a gift of money

The residuary legacy gift or property that remains after payment of debts expenses taxes and legacies

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2
Q

How does intestacy occur?

A

Intestacy occurs when property is not been disposed of by a valid will resulting in total intestacy or when there is a valid well but some of the residue has not been disposed of resulting in partial intestacy

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3
Q

In what circumstances will partial intestacy occur?

A

Testator has made a valid well which failed to dispose of the whole estate.

When residuary gift fails and Will pass by intestacy rules

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4
Q

What is a life interest?

A

Where the beneficiary only receives income from the asset.

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5
Q

Explain joint tenants

A

Owner dies automatically passes to the survivor despite will or intestacy

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6
Q

Explain tenants in common

A

Deceased’s share passes on the will or intestacy

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7
Q

Gross taxable estate includes

A
  1. All assets and deceased’s sole name
  2. Deceased’s share in joint assets
  3. Value of trust from which deceased received income
  4. Gifts that the deceased made in the last seven years prior to death may also be included
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8
Q

Banks v Goodfellow 1870

A

Testator must understand the nature of the act in this case making a will

He must know the nature of his assets but not exact amounts

He must understand any moral claims he ought to consider

He should also be free from any insane delusions For example, it is fine if he thinks the Earth is flat it is a problem if he cuts his son out of his will because he thinks wrongly that the son is trying to murder him

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9
Q

Hodson v Barnes

A

Where I will was written on an egg shell and deemed valid

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10
Q

Couser v Couser

A

Where the testator signed his Will on his own and asked a woman to witness in his presence alone. Woman’s husband then asked to sign in his presence. The woman protested and in their presence question the validity of her signature. The court held testators behaviour as acknowledgement of his signature in the presence of two witnesses. Meeting the requirements. The woman protesting her signature was held by the court to be her acknowledgement of her signature and have taken place after the testator signed. She had knowledge her signature in the presence of the testator and the husband then signed in the presence and therefore section 9 requirements were met and the Will deemed valid

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11
Q

Wood v Smith

A

Court held that a handwritten will made two days before death was valid because it commenced “my will by Peter Winterbottom” it was not signed at the end but the writing of the name and the disposition were all one operation

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12
Q

Scammell v Farmer

A

A case that turned on the Testatrix’s mental capacity. Judge decided Banks v Goodfellow should be followed because

  1. Testatrix died in 2003 (before MCA 2005)
  2. In view of the judge the mental capacity act 2005 was intended to supplement Banks v Goodfellow and not replace it.
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13
Q

Sen v Hadley

A

An elderly man three days before death handed his keys to Mrs Sen saying the house is yours and the deeds are in the steel box. The court held this was a valid gift because all the essential elements of Donatio Morris Causa had been complied with.

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14
Q

Nicholas v Nicholas

A

Probate refused on a Will when evidence was produced to show the Will was a specimen and only a joke.

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15
Q

Sallis v Jones

A

Testator said that “this will is in contemplation of marriage” it was held that this was not explicit enough and the will was not saved from revocation by later marriage.

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16
Q

Kremer

A

Client telephoned and asked for existing Will to be destroyed and another one drawn up, this was not effective revocation because the Will was not destroyed in the presence of the testator.

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17
Q

Cheese v Lovejoy

A

Testator made a Will, later drew pen through some lines and wrote on the back “All these are revoked”

He then threw the will into a heap of waste paper in the presence of his maid. The maid later retrieved the Will. The court held that the testators acts were not enough to revoke the Will on the grounds of lack of intent.

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18
Q

Marley v Rawlings

A

Where are married couple signed each other’s Wills by mistake. Court used the legal concept rectification to amend the main part of the Will which Mrs Marley had signed so that it could be submitted to probate as her Will.

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19
Q

White v Jones

A

Established that a legal advisor owes a duty of care not only to the testator but also to the beneficiaries.

A person can make a will but if it is not valid in law it will not be effective and the intestacy rules will apply.

To be valid

  1. Testator must have capacity
  2. testator must have the necessary intention and
  3. The proper legal formalities must be met.
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20
Q

Currant v Friend

A

There was a gift of personal effects which were lost when the Testator drowned at sea, the gift failed, it adeemed

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21
Q

S9 Wills Act 1837

A

Formalities of a Will

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22
Q

S11 Wills Act 1837

A

Privileged wills

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23
Q

S15 Wills Act 1837

A

Witness must not be a beneficiary of the will, however, if they are, it does not revoke the will. The beneficiary will not receive the gift however, it can be saved under S1 wills act 1968 if more than two witnesses signed and two non-beneficial witnesses can be found, the beneficiaries signature will be disregarded.

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24
Q

S18 Wills Act 1837

A

I will is automatically revoked on marriage or civil partnership as marriage has a fundamental impact to the testator

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25
Q

S18 (3) Wills Act 1837

A

A will can be saved if the contemplation of marriage clause is included in the will, it must state the name of the person that the testator intends to marry and that he does not expect the will to be revoked by marriage

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26
Q

S18 B (3) Wills Act 1837

A

A will can be saved if the contemplation of civil partnership clause is included in the will, and it must state the name of the person and that he does not expect the will to be revoked by civil partnership.

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27
Q

S18A Wills Act 1837

A

On divorce of spouse, the will will not be revoked. However, any appointment of executor will be treated as if the spouse had died on the date of divorce, the same applies for any gifts.

28
Q

S18 C Wills Act 1837

A

If a civil partnership dissolves, the will will not be revoked, however, any appointment of executor will be treated as if the partner had died on the date the partnership dissolved and the same applies for any gifts.

29
Q

S20 Wills Act 1837

A

Revocation by another Will, codicil or written document declaring intent to revoke and executed in the same manner as a valid will, destruction defined as burning, tearing our otherwise destroying by the testator or by someone else in their presence and by his direction with intention to revoking.

30
Q

S21 Wills Act 1837

A

Alterations to wills after they have been executed will not be valid or take affect unless they have been executed in the same way as a valid will.

It will be presumed that an unattested alteration was made after execution of the will and such alterations will be invalid. Under R14 NCPR 1987 A registrar or district judge will accept evidence in the form of affidavit of plight and condition, showing (if this was in fact the case) amendments were present at the time the will was executed.

31
Q

S24 Wills Act 1837

A

With regards to property, they are treated as if the will had been executed immediately before death, with regards to beneficiaries, they are the people who fit the description at the date of execution.

32
Q

S33 Wills Act 1837

A

Exception to the general rule of lapse. A gift can be saved if the beneficiary who has predeceased the testator has issue (direct descendants only). Their share will be distributed using per stirpes rule. Only applies to issue of the testator!

33
Q

R20 NCPR 1987

A

Order people who are entitled to apply for a grant of probate or letters of administration with Will annexed where there is no executor named, the executor has died or in willing to act.

34
Q

R22 NCPR 1987

A

Order of people who are entitled to apply for letters of Administration for the intestates estate which is the same order as people who will inherit.

35
Q

R14 NCPR 1987

A

A registrar or district judge will accept evidence in the form affidavit of plight and condition showing amendments were present at the time the Will was executed.

36
Q

Administration of Estates of deceased’s persons order 1986

A

The order that debts are paid in an insolvent estate you follow the order until the money runs out.

37
Q

Devise

A

Gift of land

38
Q

Reasons to make a Will

A
  1. Can appoint guardians for children
  2. Can appoint executors
  3. Can specify funeral wishes even though these are not binding on the executor
  4. Can leave gifts such as family heirlooms
  5. Intestacy rules can work against cohabited
39
Q

What Act allows cohabited to apply for a share in the estate?

A

Inheritance (Provision for family and dependants) Act 1975

40
Q

6 characteristics of a valid Will

A
  1. Deals with the disposition of property & other testamentary arrangements
  2. Declaration of intent
  3. Must generally be in a prescribed form
  4. Can be revoked before death
  5. Takes effect on death
  6. Can dispose of assets acquired after it is made
41
Q

Testator must know and approve the contents in a Will. Intention will not be presumed in the following cases….

A
  1. If the testator is blind or illiterate - The will must be read over before signing and the attestation clause must be adapted.
  2. If another signs on behalf of testator - Attestation clause must be amended
  3. Suspicious circumstances
42
Q

When does a privileged Will apply?

A
  1. When any soldier in actual military service or any marine or seaman being at sea may make a valid will without following the usual formalities
  2. Must be over 14
  3. Only for soldiers and airmen in actual emergency and mariners/seaman at sea
  4. Can be written or verbal, will be valid until the Emergancy is over
43
Q

What are the requirements of Donationes Morris causa?

A
  1. Gift must be made in contemplation of death in near future so the Donor must have reasonable belief he will die in the near future
  2. Donor can change their mind and/or reclaim gift if he lives
  3. Donor must actually transfer or arrange transfer of the gift
44
Q

What are the requirements to be a witness?

A

Must have mental capacity and not be a beneficiary or a spouse/civil partner of a beneficiary

45
Q

What is the forfeiture rule?

A

Person should not benefit from his crimes and provides hat a person who unlawfully kills another can not benefit from that persons Will

46
Q

Courts can waive the forfeiture rule if manslaughter is involved under what act and what timescales are their for making a claim?

A

Forfeiture Act 1982

Application needs to be made within 3 months of conviction

47
Q

Re K (deceased) 1985

A

Where relief was given to an abused wife who killed her husband.

48
Q

Under the Forfeiture rule how would the gift pass and what Act does this come under?

A

Estate of deceased persons order (forfeiture rule) and law of succession Act 2011

The gift would pass as if it would if they pre deceased the testator

49
Q

Where there is a valid Will Give 3 examples of when property will pass other than under that Will

A
  1. Donatio Morris Causa
  2. Codicil
  3. Property passing by survivorship
50
Q

Why is it important to include a revocation clause?

A

A later Will revoked an earlier one only to the extent it is inconsistent.

This may mean the earlier Will is revoked but might not be clear so to avoid doubt a revocation clause should be included

51
Q

What is meant by the golden rule?

A

If in doubt of mental capacity seek medical advice

52
Q

Key v Key

A

The judge in this case was scathing about the solicitor who had drawn up the will without taking steps to satisfy whether the tested I have mental capacity

53
Q

Where there is a doubt about capacity what could you do to avoid any problems after death?

A
  1. obtain medical evidence which needs to be more than a simple letter from the doctor and the relevant legal tests and criteria would need to be set out for the medical professional in any request.
  2. keep detailed notes
  3. Be wary when beneficiaries are involved in the will making process because of undue influence.
54
Q

Re Ashkettle

A

Testatrix made Will in 1986 and then a new one in 1999. Following her death sons claimed she lacked capacity in 1999.

Solicitor who prepared the 1999 Will didn’t have a file so no supporting evidence to provide she did have capacity.

Court held Will was invalid and the 1986 Will was submitted to probate.

55
Q

Wharton v Bancroft

A

Sometimes there is a need to act urgently making it impractical to follow the golden rule and the solicitor needs to draft the will without the necessary evidence.

Solicitor made his own assessment and drafted the will in contemplation of marriage so the testator could marry. The fact was that Mr Wharton was terminally ill but a capable testator.

56
Q

Barrett v Bem

A

Where the testator went to sign his will and his hand was very shaky, Anne who was present took the pen and intervened and signed for him. There was no instruction asking her to do this and therefore the Will was held invalid due to lack of proper execution.

57
Q

What steps could be taken when there is a 3rd party involved when taking Will instructions?

A
  1. Keep detailed notes of conversation with client.
  2. Ensure client is seen alone to ask why he is making changes.
  3. Confirm instructions in writing when sending a draft of the Will.
58
Q

Post grant practice

A
  1. Check grant is correct to avoid delays
  2. place section 27 TA 1925 notices if not done so already
  3. Register the grant with banks building societies etc to release funds.
  4. Arrange sale of assets
  5. repair I HT loan if applicable
  6. pay debts and liabilities
  7. Pay legacies
  8. Finalise tax position you may need a corrective account C4
  9. Draw up estate accounts and distribute the residue
59
Q

What is a will?

A

Legal document disposing of assets upon the death of the testator

60
Q

What is a codicil?

A

Document prepared with the same formalities as a will which can be used to change some of the terms of the original will. The other terms of the original will remain.

61
Q

What is the standard attestation clause?

A

Signed by the above named (insert name) in our joint presence and attested by us in the presence of him and each other

62
Q

What would the attestation clause be for a blind person?

A

This will was first read over to the said (name of testator) by me the undersigned (name of witness who read the will out loud) in the presence of me and of (name of second witness) when the testator appeared thoroughly to understand the will and to approve its contents.

The will was then signed by (name of testator) in our joint present and attested by us in the presence of him and of each other

63
Q

What clauses should be included in the will if the testator owns a business?

A
  1. Power to continue to run the business for as long as the PRs think fit
  2. Power to use assets other than those in use at date of death
  3. Indemnity for the PRs against personal liability
  4. Power to employ staff and managers to run the business
  5. Clause saying who is to inherit the business
64
Q

When does a grant of letters of administration with Will annexed appropriate?

A
  1. Valid Will but no executors names in the Will or the executor has died prior to obtaining the grant
  2. Executor doesn’t want to act and prepared to sign a renunciation
65
Q

What defines personal chattels?

A

S3 Inheritance and Trustees powers Act 2014.

Includes any tangible movable property other than money, business assets or assets held solely as an investment

66
Q

Under s3 inheritance and trustee powers act 2014 what is a surviving spouse entitled to from interstates estate?

A

£250,000 statutory legacy and half the residue outright

Law Of Wills (5 decks)

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