Wills & Administration of Estates

Question 1

What steps should be taken when reviewing a will?

Answer 1

1. Do any assets pass outside of the will?
2. Has the individual left a will? Is the will valid?
3. What property passes under the will?
4. Who inherits the residue of the estate?

Question 2

What property passes outside of the will and intestacy rules?

Answer 2

• Joint property - this passes to the surviving joint tenant
• Insurance policies - a person may write it in trust for the benefit of a specified individual
• Pension benefits - paid to family members or dependants from the trustees’ of the pension fund

Trust property - accords with the terms of the trust and not the will

Question 3

Why is a revocation clause required?

Answer 3

To make clear that any previous wills are of no effect.

Question 4

What is the role of an executor?

Answer 4

They collect assets, pay any debts and inheritance tax and then distribute the remaining assets to those entitled once probate has been granted by HM Court Tribunal Service Probate.

Question 5

What type of gifts can be received under a will?

Answer 5

Specific gifts - a specific item that can be distinguished from the rest

General gifts - items corresponding to a description e.g. shares. The executors must obtain these items using funds obtained from the estate.

Demonstrative gifts - gifts in nature but must be paid by a specific fund. Where funds do not exist or are not sufficient, the remainder or full amount must be paid by the estate

Pecuniary gifts - a gift of money which may also be general demonstrative or specific

Residuary gifts - all the money and property left after the testator’s debts have been paid

Question 6

What are the requirements for a will?

Answer 6

• Intention
• Capacity
• All formalities have been observed

Question 7

What requirements are needed to establish capacity?

Answer 7

• Must be 18 or over.
• They must understand the nature of their act and its broad effects, the extent of their property and the moral claims they ought to consider.

Question 8

What is an exception to the general rule that requires a testator to have capacity?

Answer 8

Parker v Felgate exception states that where:

• a testator has capacity when they give instructions but lose capacity by the time the will is executed; and
• the will is prepared by a solicitor in accordance with those instructions; and
• at the time of execution, the testator understands they are executing a will for which they gave instructions

a will will be validly executed.

Question 9

What is the general rule and presumption relating to capacity?

Answer 9

Generally, it is for a person who is asserting that a will is valid to prove it but a presumption applies.

The presumption applies where the will is rational on the face of it and the testator showed no evidence of mental confusion prior to making the bill.

The burden of proof shifts to the challenger if the presumption applies.

Question 10

What are the requirements to establish intention?

Answer 10

A testator must have general intention (intending to make a will) and specific intention (knowledge of the particular will being executed and its contents)

Question 11

What is the general rule and presumption in relation to intention?

Answer 11

The general rule is that a person asserting a will is valid, but the presumption of knowledge and approval arises where a testator is presumed to have read and executed the will with the requisite knowledge and approval).

Where this is proved, the burden shifts to the person challenging the will.

There are some exceptions to this rule.

Question 12

What are the exceptions to the presumption of knowledge in relation to intention?

Answer 12

• The testator is blind / illiterate / not signing personally
• Suspicious circumstances (will was prepared by a major beneficiary)

Question 13

What must a person challenging a will prove to prevent some or all of the will being admitted to probate?

Answer 13

• Force or fear
• Fraud
• Undue influence / coercion
• Mistake

Question 14

What formalities are required to create a will?

Answer 14

• It must be in writing (wet ink)
• It must be signed - thumbprints and crosses have been sufficient, as long as the testator intends to represent their name
• The testator must have intended to give effect by signature
• The signature must be witnessed by two witnesses who are capable of understanding the significance of being a witness

Question 15

Can a spouse or civil partner of a beneficiary be a witness?

Answer 15

The will will still be valid but the gift to the beneficiary or their spouse fails.

Question 16

What are the requirements for remote witnessing?

Answer 16

• Witnesses must see it being signed in real time. They can be on a three-way link or mixed in-person/online.
• The testator must sign the will and date the signature on the remote call
• The will must be posted to the witnesses
• The witnesses must sign the will in the virtual presence of the testator and sign with the date of signature

Question 17

What is a privileged will?

Answer 17

Wills created by those in military service, mariner or a seaman at sea - these wills can suffice as an oral statement.

Question 18

What is the general rule and presumption around privileged wills?

Answer 18

The person asserting the will is valid must prove it, but there is a presumption of due execution where anyone challenging has to prove it was not valid.

Question 19

What are solicitor’s duties in relation to the execution of wills?

Answer 19

• They must give clear instructions to their clients on how to sign and witness a will
• They must warn against beneficiaries and those married to beneficiaries should not be witnesses
• If they execute at home, to ensure it was validly executed by asking to return the will

Failure to comply with duties can create a claim in negligence.

Question 20

When do the rules of intestacy apply?

Answer 20

They apply to determine who is entitled to an individual’s property when they die without having disposed of it by will.

Including: invalid wills and not all estate property has been disposed of.

Question 21

What is the statutory trust when referring to intestacy?

Answer 21

A trust is imposed over all the property and held by the person dealing with the estate (the personal representative)

Question 22

What must a personal representative do before they share out the residuary estate?

Answer 22

• Personal representatives must pay all funeral costs, testamentary and administrative expenses and any debts.
• They may also sell any assets to cover the costs of any debts.
• They must also set aside any intended pecuniary legacies.
• They can then share out the residuary estate.

Question 23

What is the definition of an ‘issue’?

Answer 23

All direct descendants of the deceased including adopted children and children whose parents were not married at the time of their birth.

Question 24

How is an intestate estate distributed when there is a surviving spouse/civil partner AND issue?

Answer 24

• The spouse or civil partner received the personal chattels
• The spouse or civil partner receives a statutory legacy free of tax and costs plus interest from death until payment. This is capped at £322,000.
• The rest of the residuary estate is divided in half. The spouse receives half absolutely and the other half is held for the issue on the statutory trust.
• The spouse/civil partner must survive 28 days, otherwise it is distributed as if they did not survive the intestate.

Question 25

What happens to the family home if someone dies intestate and there is a surviving spouse/civil partner?

Answer 25

If the intestate dies as a sole owner or a tenant in common, the property will form part of the residuary estate. However, provided they are living there, the spouse/civil partner can require the personal representative to appropriate the family home in full in satisfaction of their interest in the estate.

Question 26

How is the remaining residuary estate distributed to the issue when dealing with a surviving spouse?

Answer 26

They are entitled to half the residuary estate which is held by the statutory trust. It is distributed as follows:

• Direct living children (18+)
• Direct living children (contingent on reaching the age of 18 or marrying/civil partnership)
• Living grandchildren (contingent on reaching the age of 18 or marrying/civil partnership)

If the issue die without attaining a vested interest, they will be treated as having predeceased the intestate and they can be replaced by their own issue.

Question 27

How is an intestate estate distributed where there is a surviving spouse but no issue?

Answer 27

The estate passes to the surviving spouse as a whole. They must survive 28 days to claim this,

Question 28

What is the order of distribution of an intestate estate when there is no surviving spouse?

Answer 28

1. the issue on the statutory trust
2. parents
3. brothers and sisters of whole blood
4. brothers and sisters of half blood
5. grandparents
6. aunts and uncles of whole blood
7. aunts and uncles of half blood
8. the Crown, Duchy of Lancaster or Duke of Cornwall

Any entitlement is split equally if there are multiple people in the same category.

Question 29

What is ‘bona vacantia’?

Answer 29

Vacant or ownerless goods which can be passed to the Crown, the Duchy of Lancaster and the Duke of Cornwall.

Question 30

Can any claims be made to the estate once it has been declared ‘bona vacantia’?

Answer 30

Qualifying individuals can make a claim for a provision from the estate. HM Treasury’s solicitor requires proceedings be brought to ensure all potential claimants are involved.

Question 31

What happens to the estate that passes ‘bona vacantia’ and no further claims have been made?

Answer 31

They pass to HM Treasury for tax purposes, and into benevolent funds for charitable purposes for the Duchies of Lancaster and Cornwall.

Question 32

How are adopted children treated in terms of intestacy?

Answer 32

They are treated as the children of their adopted parents and not of their natural parents.

Question 33

How are illegitimate children treated in terms of intestacy?

Answer 33

It is presumed that the individual has not been survived by their father unless the contrary is shown. This does not apply if the father is shown on the birth certificate.

Question 34

In order to benefit from a parent’s estate under the intestacy rules an adult child must survive their deceased parent by 28 days. Is this true?

Answer 34

No.

Under the intestacy rules the 28-day survival requirement only applies to a spouse, not to the other categories of potential beneficiaries.

Question 35

What is the difference between a vested interest and a contingent interest?

Answer 35

A beneficiary will have a contingent interest and not a vested interest if that beneficiary has to meet a condition.

A vested interest of a trust does not have to meet any conditions for their interest to take effect.