Wills and Administration - Fundamentals

Question 1

Property passing outside of the will and intestacy

What are four types of property that pass outside of the will/intestacy?

Answer 1

Joint property;
Life assurance policies;
Pension benefits;
Trust property owned by the deceased

Question 2

In what order does the solicitor deal with the deceased’s assets?

Answer 2

a) Property passing outside the will
b) Property passing under the will
c) Undisposed property

Question 3

What is a revocation clause?

Answer 3

A clause revoking prior wills.

Question 4

What are the five categories of gifts?

Answer 4

a) Specific - “My 100 shares in Apple to my son”
b) General - “100 shares in Apple to my son”. If none exist at death, they must be purchased. They are rare.
c) Demonstrative - General in nature, but paid from a specific fund. “£500 to X paid from my Monzo account.
d) Pecuniary -
e) Residuary - “The rest of my estate to x”. All property/money left after debts, expenses and other gifts. Usually most substantial gift.

Question 5

Validity of will

What are the three requirements for a valid will?

Answer 5

1. Testamentary capacity
2. Testamentary intention.
3. Formalities for execution observed.

Question 6

Validity: Capacity

What are the requirements for capacity that the testator must meet?

Answer 6

(1) Over 18

(2) Understands:
- the nature of his act and its broad effects (the fact that they are making a will)
- the extent of his property (roughly); and
- the moral claims he ought to consider.

(3) Not suffering from an insane delusion.

Question 7

Validity: Capacity

What is the Parker v Felgate exception to the general rule that testators must have capacity at the time of execution?

Answer 7

The will is valid if:

a) The testator gave instructions to a solicitor, who prepared the will in accordance with the instructions.

b) When giving instructions, the testator had the required capacity.

c) When executing the will, the testator appreciates they are signing a will prepared in accordance with their previous instructions.

Question 8

Validity: Capacity

What can the Court of Protection do if a testator is mentally incapable of making a valid will?

What are the requirements?

Answer 8

Empower an authorised person to execute a “statutory will”, made effective by affixing the court seal.

Requirements:

• Full details of the deceased, their family, property, previous wills are given to the Court.
• It is in the testator’s best interests.

Question 9

Validity: Capacity

What is the “Golden Rule”?

Answer 9

A solicitor preparing a will for a testator whose mental state is in doubt should ask a medical practitioner to provide a written report of testamentary capacity, and ask the doctor to witness the will.

Question 10

Validity

Who bears the burden of proving the validity of the will?

Answer 10

The general rule: The person asserting that the will is valid must prove it.

However, there is a presumption of capacity which the executors can rely upon.

Question 11

Validity: Capacity

What is the presumption of capacity?

Answer 11

The testator is presumed to have mental capacity if:

(1) the will is rational on its face.
(2) the testator shows no evidence of mental confusion prior to making the will.

The presumption shifts the burden to someone challenging the will’s validity on the ground that the testator lacked capacity.

The courts are less likely to find a lack of capacity where the will was prepared by an experienced, independent solicitor.

Question 12

Validity: Intention

What is the meaning of testamentary intention?

Answer 12

The testator intends:

a. to make a will (general intention) and;
b. to make that particular will (specific intention).

Question 13

Validity: Intention

Explain specific intention further.

Answer 13

The testator knows and approves of the contents of the will at the time that it is executed (unless Parker v Felgate applies).

Question 14

In relation to intention, what presumption operates to displace the general rule that the person asserting the will’s validity must prove it?

Answer 14

The presumption of knowledge and approval:

The testator is presumed to have the requisite knowledge and approval if he:

1. has capacity; and
2. has read and executed the will

Question 15

In which situations is the presumption of knowledge and approval disapplied?

2 situations.

Answer 15

1. Testator is blind/illiterate/not signing personally.
2. Suspicious circumstances: E.g. prepared by a major beneficiary of the will, or a close relative of a major beneficiary).

Best practice to avoid problems: Include a statement that “the will was read over to the testator, who knew and approved its contents”.

If not, the Probate Registry would require evidence to prove knowledge and approval before granting probate.

Question 16

If the testator easily proves capacity and knowledge/approval, how else can a person challenge the will?

Answer 16

• Force or fear (actual/threatened injury)
• Fraud (e.g. being misled by some pretence)
• Undue influence (testator’s freedom of choice overcome by intolerable pressure - coercion/duress).
• Actual mistake - presumption of knowledge and approval disapplied.

Note: Undue influence is very difficult to prove.
Mistake: misunderstanding the true legal meaning of words used will not invalidate the will.

Question 17

What are the formalities of execution according to section 9 of the Wills Act 1837?

Answer 17

The will must be:

(a) in writing.
(b) signed.
(c) witnessed.

• Any kind of signing, including crosses, thumbprints. “Your loving mother” was held to be valid.
• • The testator must intend to give effect to the will by signature.

Question 18

If the testator is too weak to sign, how can the will be signed?

Answer 18

Another person can sign the will on behalf of the testator, in the testator’s presence and at their direction.

Question 19

What are the two stages to the process of witnessing a signature?

Answer 19

(1) The testator’s signature is made or acknowledged in the presence of two witnesses at the same time.
(2) The witnesses must sign or acknowledge in the presence of the testator (not necessarily in the presence of each other).

Question 20

What does “presence” mean in the context of witnessing a signature?

Answer 20

Mental presence: Must be aware that the testator is signing a document. Need not know that it is a will.
Physical presence: Able to see the testator signing.

Question 21

What does “acknowledging a signature” mean?

Answer 21

An alternative to signing: if

(1) The testator does not sign in the presence of a witness. The will can still be valid if the testator acknowledges his signature to the two witnesses.
(2) The witness does not sign in the presence of the testator. The will can still be valid if the witness acknowledges his signature to the testator.

Question 22

What are the formal requirements for the capacity of witnesses?

Answer 22

• Over 18
  Capable of understanding significance of being a witness.
• Not blind.

Question 23

If any of the witnesses is a beneficiary under the will, or is a spouse of a beneficiary, how is the will’s validity affected?

Answer 23

The will remains valid, but the gift to the witness or their spouse fails.

Question 24

What is the exception to the rule that wills must comply with the s.9 requirements?

Answer 24

Privileged wills. A will made on actual military service or mariners/seamen at sea.

The only requirement for these are that the testator intends to dispose of his property after death.

Question 25

In relation to formalities, what presumption operates to displace the general rule that the person asserting the will’s validity must prove it?

Answer 25

The presumption of due execution:

If the will includes an attestation clause, the will is presumed to have been duly executed.

The attestation clause recites that the s.9 formalities were observed e.g. “Signed by the testator in our joint presence and then by us in hers”. This is an attestation clause.

Where there is no attestation clause, the Probate Registry will require an affidavit of due execution from a witness or other person present during execution

Question 26

Establishing the testator’s intention

When will the court look to extrinsic evidence to ascertain the testator’s intention?

Answer 26

To the extent that:
a) any part is meaningless;
b) any part is ambiguous;
c) other evidence shows that the language used is ambiguous in light of surrounding circumstances.

Question 27

Establishing Entitlement

When can the court rectify a will?

Answer 27

The testator’s intentions are clear, but the will fails to carry them out due to
a) a clerical error
b) a failure to understand his instructions

Very narrow scope. Misunderstanding the law would not be included.

Question 28

Entitlement: property passing under the will

For property, the will is said to speak from….
This means…

Answer 28

For property, the will speaks from the date of death, unless a contracy intention appears.

Question 29

Entitlement: property passing under the will

What are the effects of the testator referring to a gift of “my car” - would it be the car at the date of death or at the time of execution? What about a gift of “my collection of cars”?

Answer 29

“My car” is interpreted as a “contrary intention” to the will speaking from date of death = the car owned at execution.

In contrast, “My collection of cars” does not single out any specific car. It would therefore mean any item fitting that description at death.

Question 30

Establishing entitlement: identifying beneficiaries

For persons, the will is said to speak from…

However, this does not apply to…

Answer 30

Date of execution.

Class gifts. Gifts to ‘my grandchildren’, for example, will be determined by the members of that class at death.

Question 31

Establishing entitlement: rules relating to children

The normal meaning of “issue” is….
Adopted children are treated as….
If a child has an interest which hasn’t yet vested, and is subsequently adopted, their interest is….

Answer 31

Issue: direct descendant of any generation (children, grandchildren, etc)
Adopted children are treated as the children of the adoptive parent (unless the will provides otherwise)
The interest would be unaffected.

Question 32

Entitlement: spouses/civil partners

If John enters a civil partnership, but a gift to “John’s wife” is given in the will, would the gift fail?

Answer 32

Yes.

Question 33

Failure of gifts

What is the effect of divorce/dissolution after the will has been executed?

Answer 33

Any property/interest in property to that former spouse/civil partner would pass as if they had died on the date of divorce/dissolution.

Question 34

Failure of gifts: ademption

When does ademption occur?

Answer 34

When a specific legacy fails because the testator no longer owns that property at death.

Question 35

Failure of gifts: ademption

If an asset changed its nature since the will was made (e.g. shares of a company which has been taken over), the question is whether….

Answer 35

…the asset is substantially the same, having changed merely in form not substance.

Question 36

Failure of gifts: ademption

Where the testator described a specific gift (e.g. “my car”) but before death acquires another item matching that description, what is the presumption?

Answer 36

The gift was the asset owned at execution, so it is adeemed.

Question 37

Failure of gifts: lapse

A gift in a will lapses if…
In such a case, the property falls into…
If a gift of …. lapses, the property passes under….

Answer 37

…the beneficiary dies before the testator.
….the residue (unless the testator has provided for a substitutional gift)
If a gift of residue lapses, the property passes under intestacy (unless the testator provided for a subsitutional gift)

Question 38

If the testator makes a codicil, it ____ the will and the will is treated as made at the date of….

Answer 38

[Republishes]
[Republication]

Question 39

Entitlement: Lapse

If the order of deaths between the testator and beneficiary cannot be proved, section 184 of the Law of Property Act 1925 provides that….
Therefore if the testator is older than the beneficiary, what are the effects if it cannot be proved who died first?

Answer 39

…the elder of the two is deemed to have died first.

The effect is that if a gift to the beneficiary will pass as part of the beneficiary’s estate.

Question 40

Entitlement: survivorship clauses

Commonly, gifts in wills are made conditional upon the beneficiary’s survivial for a specific period of time (e.g. 28 days). What is the point of such clauses?

Answer 40

To prevent a gift from taking effect where the beneficiary survives the testator for only a short period of time or is deemed to have survived by s.184.

Question 41

If a gift is made “to A and B jointly” and A dies before the testator, B takes the whole share. What happens if the will reads “everything to A and B in equal shares” and A dies before the testator?

Answer 41

A’s share lapses and B takes only one share. A’s share passes under intestacy, unless the testator included a substitional gift.

Question 42

If the gift is a class gift (e.g. “to my nephews, equally if more than one”), when would the gift lapse?

Answer 42

If all members of the class predecease the testator.

Question 43

Failed Gifts: Section 33 Wills Act 1837

What is the exception to the doctrine of lapse under s.33 of the Wills Act 1837?

Answer 43

Where a will contains a gift to the testator’s child or remoter descendant and that child predeceases the testator leaving issue who survive the testator, the gift passes to the issue.

The issue takes the gift in equal shares.

Section 33 doesn’t apply if the will shows a contrary intention, e.g. by an express substitution clause.

Question 44

A beneficiary who disclaims a gift is treated as….

Answer 44

…having predeceased the testator, allowing the beneficiary’s issue to replace them under s.33 Wills Act 1837.

If no issue, the gift falls into residue, or in the case of a gift of residue, pass under intestacy.

Question 45

A beneficiary will not be able to disclaim a gift if….

Answer 45

…they received a benefit from the gift (e.g. a payment of income). Then they are taken to have accepted the gift.

Question 46

Failure of gifts: forfeiture

When does forfeiture apply?

Answer 46

When the testator has been unlawfully killed. It applies to any entitlement (whether by will, survivorship or intestacy).

Question 47

Terry is murdered by his daughter Denise, who has a son Sean. Terry’s will left everything to Denise. What is the result?

Answer 47

Denise forfeits her entitlement. She is treated as if she predeceased Terry, therefore the estate passes to Sean.

Question 48

The court can modify the effect of forfeiture for….
The killer must apply within….

Answer 48

….unlawful killing other than murder.
….3 months of conviction.

Question 49

The three situations in which a will can be revoked are:

Answer 49

1. Later will or codicil
2. Destruction.
3. Marriage/civil partnership

Question 50

Revocation by later will or codicil

If a will does not contain an express revocation clause, what are its effects on an earlier will (or codicil)?

Answer 50

To revoke that earlier will to the extent that the two are inconsistent.

Question 51

Revocation by later will or codicil

A testator revokes his will, with the express intention to make another one. What happens if the testator subsequently makes no new will or an invalid one? .

Answer 51

The “revoked” will remains valid according to the “conditional revocation” doctrine.

Question 52

Revocation by destruction

How can a will be revoked by destruction?

Answer 52

(1) The testator “burning, tearing or otherwise destroying” it.
(2) Act of destruction carried out with the intention to revoke.

Question 53

Ranvir is estranged from her family. She makes a will leaving her estate to her friend Tina. A few years later, R destroys the will, having decided to make a new will leaving the estate to another friend Charlene. Ranvir dies before her new will is executed.

Who takes the estate?

Answer 53

If the primary aim was to exclude Tina from benefitting, the court will infer revocation. However, if it can be shown that T wanted to benefit Charlene, but would have preferred Tina to take rather than those entitled on intestacy, the court will infer that the revocation was conditional upon execution of a valid subsequent will. Tina would take the estate.

Question 54

Revocation on marriage

What is the exception to the rule that marriage revokes a will?

(Explanation required in next slide)

Answer 54

When the testator makes the will in contemplation of marriage.

Question 55

Revocation on marriage

What two elements must the testator satisfy for a will to be made in contemplation of marriage?

Answer 55

1. He makes the will in expectation of a forthcoming marriage to a particular person
2. He intends that the will is not revoked by that marriage.

Question 56

If same-sex civil partners convert their civil partnership to a marriage, would that marriage revoke the will?

Answer 56

No. It will have no effect on the will.

Question 57

Wills and divorce

What is the effect of divorce (or dissolution of civil partnership) on a will?

Answer 57

The will remains valid but:
(a) Provisions appointing the former spouse as executor or trustee take effect as if the former spouse died on the date of dissolution/annulment.
(b) Any property or interest in property gifted to the former spouse in the will passes as if the former spouse died on the date of dissolution/annulment.

Only applies to dissolution/annulment by the court.

Question 58

Mutual wills

What is a mutual will? What is imposed as a result of such wills?

Answer 58

Two people make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way.

A constructive trust is implied over the estate, preventing the surviving side from going back on their promise.

Question 59

Revocation, Additions and Alterations

What condition must be met for the doctrine to apply?

Mutual wills

Answer 59

The wills must have been made as a result of a clear agreement that the survivor would not revoke their will.

(or less commonly, that the survivor would leave their estates in a part

Question 60

Revocation, Additions and Alterations

The survivor is not permitted to….

Mutual wills

Answer 60

…make dispositions during their lifetime with the intention of defeating the agreement in the mutual wills.

Question 61

During their joint lives, if one testator unilaterally revokes their will, the other testator’s remedy is…. because….

Mutual wills

Answer 61

….damages for loss suffered, because there is contractual breach. The innocent side will be released from the agreement not to revoke.

Question 62

Codicils

Intention to republish the will can be deduced in two ways:

Answer 62

• Evidence on face of codicil.
• Inference from reference to the existing wil.

Question 63

Can a codicil be used to revive a will that was previously revoked?

Answer 63

Yes, if it evidences that intention.

In this case, a mere reference to the will does not suffice.

Question 64

Alterations

What is an alteration?

How can alterations before execution be valid?

How can alterations after execution be valid?

Answer 64

• A change on the will.
• Before execution: valid if testator intended the alterations to form part of the will.
• After execution: valid if those alterations were themselves executed like a will or initials of testator and witnesses are in the margin next to the amendment.

Note: in the absence of contrary evidence, the alteration is presumed to have been made after the will was executed.

Question 65

Alterations

In case of an invalid alteration, does the original wording of the will still stand?

Answer 65

Yes, provided that the wording is optically apparent.

Can ascertain by use of magnifying glass, but not by extrinsic evidence or interference with the will (e.g. chemicals)

Question 66

Alterations

What is the exception to the rule that an alteration must be executed to be valid?

Answer 66

Obliteration

• acts as a form of revocation by destruction, therefore there must be destruction + intention to revoke.

Question 67

Alteration

If the testator obliterates the original wording and adds substitute wording, without any valid execution, what does the court do?

Answer 67

Court allows extrinsic evidence or interference with the will in order to ascertain original wording. If discoverable by such means, the original gift takes effect. If not, there is no gift.

Question 68

Will Drafting

(1) How many executors can apply for the grant of probate to the same assets?

(2) The minimum number of executors is one, but can they give a good receipt for the proceeds of sale of land?

(3) Which trustees (including PRs) can be paid reasonable remuneration for their time spent/work done?

(4) Would they require consent from their co-trustees?

Answer 68

(1) Four.
(2) Yes.

(3)
- A trust corporation.
- A trustee “acting in a professional capacity”.

(4) Yes (but no for a trust corporation)

But if it is a trust of land, two trustees need to be appointed to give a valid receipt.

Question 69

Burden of IHT, costs and charges

The default position is that IHT on individual legacies is paid out of…

“I give the Old Vicarage to Alison Peters subject to tax” - does the estate or the beneficiary bear the burden of tax?

Unless the will says otherwise, who/what bears the costs of a gift?

Unless the will says otherwise, who/what bears the burden of paying off the mortgage debt of a specific devise?

Answer 69

…the residuary estate.

The beneficiary. “Subject to tax” displaces the general rule.

The beneficiary bears the cost.

The beneficiary bears the burden of paying off the mortgage.

Question 70

Will Drafting: Gift Residue

If there is a gift of residue to “Gillian, Harry and Iris equally” in a will, and Iris dies, what happens?

Answer 70

Iris’s share lapses, and passes on partial intestacy.

For this reason, it is best to be less specific, e.g. “such of my children as attain the age of 25 years, and if more than one, in equal shares absolutely”.

Question 71

Will drafting: Administrative Provisions

Do PRs have the power to appropriate specific legacies, in order to satisfy a legacy or interest in residue?

Answer 71

No. They can do so for other assets, with the consent of the beneficiary receiving the assets (the legatee).

Trustees do not have the power to appropriate assets in order to satisfy legacies, unless expreslly given in the trust document.

There are more trustee specific powers which I have omitted (65-68) which may be a helpful summary but they overlap with Trusts manual.

Question 72

Will Drafting: Powers of PRs and Trustees

(1) What are two powers of PRs under statute?
(2) What are three other powers that should be drafted in?

Powers included in all wills

Answer 72

(1)
- Power to appropriate assets toward satisfaction of a legacy (s.41 AEA 1925)
- Power to insure assets against risks (s.19 TA 1925)

(2)
- Power to charge remuneration
- Power to accept receipts on behalf of minors.
- Power to self-deal.

Question 73

Will Drafting: Professional Conduct

Where the client wishes to make a gift of significant value to you or a member of your family, you must satisfy yourself that…

Answer 73

…the client has first taken independent legal advice.

If they refuse, you must cease to act. Some exceptions e.g. if your own parent died, and the surviving parent wants to leave the whole residuary estate to you and your sibling in equal shares.