Wills and Administration - Fundamentals

Question 1

Property passing outside of the will and intestacy

What is a life assurance policy?

Answer 1

An insurance policy that a person takes out which matures on the person’s death.

Simple life assurance: insurance company pays the proceeds to the deceased’s PRs who distribute the money according to the will/intestacy.

Alternative arrangements: Person takes out life assurance and writes it in trust for beneficiaries; Another version: policy assigned to beneficiaries.

Question 2

Property passing outside of the will and intestacy

What are Pension Benefits?

Answer 2

• Payment of benefits if an employee dies while employed.
• A lump sum is calculated based on their salary at the time of death paid by the trustees of the pension fund to family/dependents chosen at the discretion of the trustees.

Question 3

Property passing outside of the will and intestacy

If the deceased had an equitable interest as a beneficiary of a trust (e.g. a life interest) how does the trust property devolve?

Answer 3

Many equitable interests come to an end at the beneficiary’s death. These devolve according to the trust deed, not the life tenant’s will.

Question 4

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

Answer 4

a) Property passing outside the will
b) Property passing under the will
c) Property not disposed of and passing on intestacy.

Question 5

What is a revocation clause?

Answer 5

A clause revoking prior wills.

Question 6

What are the five categories of gifts?

Answer 6

a) Specific - Gift of specific item.
b) General - Gift corresponding to a description. E.g. “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 - Gift of money.
e) Residuary - “The rest of my estate to x”. All property/money left after debts, expenses and other gifts. Usually most substantial gift.

Question 7

Validity of will

What are the three requirements for a valid will?

Answer 7

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

Question 8

Validity: Capacity

What is the test for capacity?

Answer 8

Client must answer in the affirmative:

1. Is the testator over 18?
2. Does the testator understand:

a) The nature of his act and its broad effects? (the fact that they are making a will)

b) The extent of his property (it is not necessary to recollect every item)?

c) The moral claims he ought to consider?

In addition, he must not be suffering from an insane delusion.

Question 9

Validity: Capacity

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

Answer 9

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 10

Validity: Capacity

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

Answer 10

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

The requirements are:

• Full details of the deceased, their family, property, previous wills are given to the Court.
• The statutory will is approved only if it in the testator’s best interests.

Question 11

Validity: Capacity

What is the “Golden Rule”?

Answer 11

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 12

Validity

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

Answer 12

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 13

Validity: Capacity

What is the presumption of capacity?

Answer 13

There is a presumption that the testator has 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 14

Validity: Intention

What is the meaning of testamentary intention?

Answer 14

The testator intends to make a will (general intention) and intends to make that particular will (specific intention).

Question 15

Validity: Intention

Explain specific intention further.

Answer 15

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

Question 16

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

Answer 16

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 17

In which situations does the presumption of knowledge and approval not apply?

2 situations.

Answer 17

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 18

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

Answer 18

• 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).

Note: Undue influence is very difficult to prove.

• Actual mistake - presumption of knowledge and approval disapplied.

Note: misunderstanding the true legal meaning of words used will not invalidate the will.

Question 19

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

Answer 19

(a) The will must be in writing.
(b) The will must be signed.

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

(c) The signature must be witnessed.

Question 20

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

Answer 20

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

Question 21

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

Answer 21

(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 22

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

Answer 22

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 23

What does “acknowledging a signature” mean?

Answer 23

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 24

What are the formal requirements for the capacity of witnesses?

Answer 24

None. They must simply be capable of understanding the significance of being a witness. Also cannot be blind.

Question 25

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 25

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

Question 26

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

Answer 26

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 27

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

Answer 27

The presumption of due execution: if the will includes a clause reciting 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 28

Establishing Entitlement

What are the two basic presumptions the court applies in establishing the testator’s intentions?

Answer 28

a) Non-technical words bear their ordinary meaning
b) Technical words are given their technical meaning.

Question 29

Establishing the testator’s intention

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

Answer 29

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

Question 30

Establishing Entitlement

When can the court use its limited power to rectify a will?

Answer 30

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 31

Entitlement: property passing under the will

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

Answer 31

For property, the will speaks from the date of death. This means that assets are determined in accordance tho those in existence at the date of death, unless a contracy intention appears.

Question 32

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 32

“My car” is interpreted as a “contrary intention” to the will speaking from date of death. Therefore instead, it means the car which the testator owned at the date of execution.

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

Question 33

Establishing entitlement: identifying beneficiaries

For persons, the will is said to speak from…

Therefore, when beneficiaries are referred to by description (e.g. “Kate’s eldest daughter”) the general rule is that…

Answer 33

Date of execution. This is construed as a gift to the person fulfilling that description at the time the will was made.

The above rule does not apply to class gifts, however, and so gifts to ‘my grandchildren’ will be determined by the members of that class as ascertained at death

Question 34

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 34

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 35

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 35

Yes.

Question 36

Failure of gifts: Beneficiary witnesses will

If a beneficiary or their spouse (at the time) acts as a witness, what is the effect?

Answer 36

Any gift to that beneficiary fails, but they remain a competent witness so the will remains valid.

Question 37

If there are three witnesses, what is the effect of one of them being the beneficiary?

Answer 37

The gift to that beneficiary is effective.

Question 38

Failure of gifts

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

Answer 38

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 39

Failure of gifts: ademption

When does ademption occur?

Answer 39

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

Question 40

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 40

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

Question 41

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 41

The testator intended that the gift was the asset they owned at the date of execution, so the gift is adeemed.

Question 42

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 42

…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 the rules of intestacy (unless the testator provided for a subsitutional gift)

Question 43

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

Answer 43

[Republishes]
[Republication]

Question 44

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?

Answer 44

…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 45

A husband (aged 60) and wife (aged 50) were found dead at their home, which they held as joint tenants. Each spouse had a child from a previous marriage. Which spouse’s child takes the house?

Answer 45

The wife’s child.

Question 46

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 46

• 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 47

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 47

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

Question 48

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

Answer 48

If all members of the class predecease the testator.

Question 49

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 49

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 doesn’t lapse, but passes instead 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 50

Failed gifts: Disclaimer

If a beneficiary disclaims a gift, the gift will….

Answer 50

….fall into residue, or in the case of a gift of residue, pass under intestacy.

Question 51

A beneficiary who disclaims a gift is treated as….

Answer 51

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

Question 52

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

Answer 52

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

Question 53

Failure of gifts: forfeiture

When does forfeiture apply?

Answer 53

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

Question 54

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

Answer 54

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

Question 55

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

Answer 55

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

Question 56

What is revocation and what are its effects?

Answer 56

• The formal act of cancelling/withrdrawing a will.
• Effect is to nullify the will, either in whole or in part.

Question 57

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

Answer 57

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

Question 58

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 58

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

Question 59

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 59

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

Question 60

Revocation by destruction

How can a will be revoked by destruction?

Answer 60

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

Question 61

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 61

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 62

Wills: Revocation

What is the effect of marriage on a will?

Answer 62

If the testator marries or forms a civil partnership after executing a will, the will is automatically revoked.

Question 63

Revocation on marriage

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

(Explanation required in next slide)

Answer 63

When the testator makes the will in contemplation of marriage.

Question 64

Revocation on marriage

What two elements must be satisfied for a will to be made in contemplation of marriage?

Answer 64

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

Question 65

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

Answer 65

No. It will have no effect on the will.

Question 66

Wills and divorce

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

Answer 66

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 67

Mutual wills

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

Answer 67

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 68

Revocation, Additions and Alterations

What condition must be met for the doctrine to apply?

Mutual wills

Answer 68

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 69

Revocation, Additions and Alterations

The survivor is not permitted to….

Mutual wills

Answer 69

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

Question 70

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

Mutual wills

Answer 70

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

Question 71

Codicils

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

Answer 71

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

Question 72

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

Answer 72

Yes, if it evidences that intention.

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

Question 73

Alterations

What is an alteration?

How can alterations before execution be valid?

How can alterations after execution be valid?

In the absence of contrary evidence, the atleration is presumed to have been made…

Answer 73

• A change on the will itself.
• 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.

Question 74

Alterations

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

Answer 74

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 75

Alterations

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

Answer 75

Obliteration

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

Question 76

Alteration

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

Answer 76

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 77

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 thy 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 77

(1) Four.
(2) Yes.

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

(4) Yes.

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

Question 78

Will Drafting: Non-residuary gifts

What is the difference between a vested and contingent interest?

If a beneficiary is under the age of 18, who can give good receipt as trustees?

Answer 78

A vested interest imposes no conditions and the beneficiary will be immediately entitled to the gift.

Guardian/parent.

Question 79

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 79

…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 80

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 80

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 81

Will drafting: Administrative Provisions

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

Answer 81

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 82

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 82

(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 83

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 83

(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 84

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 84

…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.