Wills and Administration of Estates

Question 1

a solicitor will deal with the deceased’s assets in what order?

Answer 1

assets passing independently over the will
the will
rules of intestacy (fall back position)

Question 2

which property passes independent of a will and the rules of intestacy?

Answer 2

1. joint property (survivorship applies to JTs but not tenants in common - property will pass dependent on their will)
2. insurance policies - the payout of a life insurance policy goes to the person who has died -> insurance company will pay the sums to their personal representatives who will distribute in accordance with the will or the intestacy rules (unless the policy is written in trust for beneficiaries - upon death it will be transferred to the beneficiaries)
3. pension benefits - (where the person dies before they receive their pension)
4. trust property - the trust will be devolved according to its terms

Question 3

after the deceased dies, what does the executor usually do?

Answer 3

make an application to His Majesty’s Courts and Tribunals Service Probate (HMCTS) for a grant of probate which confirms that the will is valid and that the executor has authority to act

the grant of probate will not be issued if there are any concerns as to the validity of the will

Question 4

what are the requirements for a valid will?

Answer 4

1. capacity
2. intention
3. formalities

the absence of any of these will invalidate the will

Question 5

what is the test for capacity?

Answer 5

‘soundness of mind, memory and
understanding’ - Banks v Goodfellow

Testators must understand:

(a) the nature of their act and its broad effects (the fact that they are making a will which will have effect on their death);

(b) the extent of their property (although not necessarily recollecting every individual item); and

(c) the moral claims they ought to consider (even if they decide to reject such claims and dispose of their property to other beneficiaries).

In addition, the testator must not be suffering from any insane delusion which affects the disposition of property.

Question 6

what is the exception to the rule on capacity?

Answer 6

Parker v Felgate:

a will can be valid if the testator has capacity when they give instructions for the will even if they lose capacity by the time the will is executed. but at the time the testator executes the will, they
appreciate that they are signing a will prepared in accordance with their previous instructions

Question 7

what happens if a testator is mentally incapable of making a valid will?

Answer 7

‘statutory will’ may be made on their behalf under the MCA.

The Court of Protection empowers an authorised person to execute the will and then gives effect to the will by affixing the court seal.

The Court of Protection will require full details of the deceased, their family, property and previous wills and will approve a draft will only if it is in the testator’s best interests.

Question 8

if a testator’s mental capacity is in doubt, what should the solicitor who is preparing it do?

Answer 8

follow the ‘golden rule’

The solicitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and also ask the doctor to witness the will.

The solicitor should record their own view
of the testator’s capacity in a file note.

The written evidence should be kept on the file in case someone challenges the validity of the will after the testator’s death.

Question 9

who has the burden of proof in proving the validity of a will?

Answer 9

that it is for the person who is asserting that a will is valid to prove it

however in most cases, the executor does not have to prove this, as there is a presumption that the testator satisfied the mental capacity test

The presumption applies if the will is rational on its face and the testator showed no evidence of mental confusion before making the will.

In the event that someone wishes to challenge the validity of the will on the ground that the testator lacked capacity, the burden shifts to the challenger to prove lack of capacity.

the courts are less likely to find the testator lacked capacity if an experienced, independent solicitor and a medical practitioner stated they did

Question 10

what is meant by a testator having intention to create a will?

Answer 10

they must have general and specific intention

(general = to make a will as opposed to any other legal doc + specific = must intend to make the will now being executed - the testator must know and approve its contents - exception in Parker v Felgate)

Question 11

where does the burden of proof lie regarding a testator’s intention?

Answer 11

Again, the general rule is that it is for the person asserting that a will is valid to prove it.

However, usually, it is not necessary to prove intention because a presumption of knowledge and approval arises.

A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval.

Question 13

in what circumstances does the presumption of knowledge and approval not apply?

Answer 13

1. Testator blind/ illiterate/ not signing personally

HMCTS will require evidence to prove knowledge and approval before
they will issue a grant of probate.

statement at the end of the will stating that the will was read over to the testator, or read by the testator who knew and approved the contents

2. suspicious circumstances surrounding the drafting and/ or execution of the will (eg the will has been prepared by someone who is to be a major beneficiary under its terms or who is a close relative of a major beneficiary)

the executor or person putting forward the will must remove the suspicion by proving that the testator did actually know and approve the will’s contents

3. Force or fear (through actual or threatened injury), fraud, undue influence (coercion or duress) and mistake (words included without testator’s approval = omitted from probate vs words included but not understood the legal meaning of = not omitted from probate)

Question 14

which cases tell us about the presumption of knowledge and approval in finding a testator’s intention to create a will?

Answer 14

Wintle v Nye - sol drew up will which gave him the bulk of elderly testarix’s large estate

The House of Lords held that the suspicious circumstances of the beneficiary preparing the will meant that there was no presumption of knowledge and approval. The burden of proof was on the solicitor, Nye, to prove that the testatrix knew and approved the contents of the will.
In the circumstances of the case this was a very heavy burden to discharge.

Gill v Woodall - the presumption did not apply where the beneficiary played no part in the preparation of the will

Question 14

should a solicitor accept instructions from a third party to draw up a will for a testator?

Answer 14

no - they should interview the testator in the absence of the third party to ensure that any will drafted reflects the testator’s wishes

Question 14

what is the consequence of someone making an unsubstantiated claim for undue influence in the creation of a will?

Answer 14

must prove undue influence (cannot just allege)

it very difficult for a person to challenge a will on this basis

collect evidence from family, friends and carers

it is such a serious allegation that a claimant
who fails to substantiate their claim will be penalised in costs.

Question 15

why is it to differentiate between actual mistake and misunderstanding as to the true legal meaning of words in a will?

Answer 15

it affects whether the presumption of the testator having knowledge and approval of the will and the will therefore being valid, will apply

the presumption that the testator had the knowledge and approval of the will does not apply where part or all of the will has been included by mistake - may invalidate the will

where there is a misunderstanding to the true legal meaning of the words = presumption still applies

Question 16

which formalities are required to execute a will?

Answer 16

section 9 wills act 1837

1) the will must be in writing
2) the will must be signed
3) the testator must have intended to give effect to the will by his signature (the testator intended that his signature would cause the will to take effect)
4) the signature must be witnessed

Question 17

would a purely electronic will be sufficient under the formalities required under section 9 of the wills act?

Answer 17

a will can be typed but it unlikely a purely electronic will will be considered as in writing

the purpose of section 9 is to prevent fraud and it would be easy for a third party to fraudulently change a purely electronic will

Question 18

will the following be sufficient signatures for the purposes of section 9 wills act 1837?

signing as ‘your loving mother’

crosses

thumbprints

another party signing the will on the testator’s behalf whilst in the presence of the testator and following their direction

Answer 18

yes all four will be sufficient

note - regarding another person signing the will on behalf of the testator - the testator must give the person a positive and discernible direction (verbal or non- verbal) that they want the person to sign on their behalf.

Question 19

explain what is meant by the signing of the will must be witnessed according to section 9 wills act 1837

Answer 19

The testator must either sign in the presence of two witnesses or acknowledge to the witnesses that it is their signature on the Will.

signing - two stages:

1) testator must sign in the presence of two witnesses (the two witnesses must be present together)

2) the witnesses must sign to say they have seen the testator sign the will (they don’t have to do this together/at the same time)

presence = mental (witnesses must be aware the testator is signing the will) and physical presence (unobstructed view of the signing)

Question 20

are there any rules in relating to the capacity of witnesses to the signing of a will?

Answer 20

no but they must be capable of understanding the significance of being witnesses to a signature

note - section 15 wills act 1837
If either of the witnesses is a beneficiary under the will or is the spouse or civil partner of a beneficiary, the will remains valid but the gift to the witness or to the witness’s spouse/civil partner fails

Question 21

what is the legal position on remote witnessing?

Answer 21

wills made between 28 September 2020 and 31 January 2024 - witnesses being present to the signing / acknowledgement of the will = able to be done via videocon

only applied to where testator was signing their own will (where a third party was signing on the testator’s behalf - remote presence is not enough)

1) pre-recorded videos = not enough, must be seen in real time
2) the witnesses and the testator can be in three separate locations via a three-way link
3) The testator must physically sign the will (or acknowledge an earlier physical signature). Electronic signatures are not permitted. The testator must date the will with the date of signature.
4) the will must then be taken or posted to the witnesses
5) the witnesses must then sign the will themselves in the virtual presence of the testator and ideally in the presence of the other witness too
6) The witnesses will sign with the date on which they are signing, which may be different from the date on which the testator signed and the date on which the other witness signs. The execution process is not complete until everyone has signed.

If the testator dies before all signatures have been added, the will cannot take effect.

Question 22

where does the burden of proof lie regarding valid execution of the will?

Answer 22

it is for the person who is asserting a will is valid to prove it.

However, in most cases, no proof is necessary because there is a presumption of due execution if the will includes a clause which recites that the s 9 formalities were
observed, such as, ‘Signed by the testatrix in our joint presence and then by us in hers’. = attestation clause

The presumption means that anyone challenging the validity of the will on the ground that it was not validly executed has the burden of proving this was the case.

Question 23

what is the exception to the rule that wills must comply with the formalities in section 9 wills act 1837 in order to be valid?

Answer 23

A will made on actual military service or by a mariner or seaman at sea may be in any form, including a mere oral statement (s 11 Wills Act 1837).

only requirement = intends to dispose of his property after death

Question 24

what happens if there is no attestation clause in a will? can it still be executed?

Answer 24

If the will does not contain an attestation clause, HMCTS will require:

1) an affidavit of due execution (or witness statement verified by a statement of truth) from a witness or any other person who was present during the execution

OR failing the above…

2) an affidavit of handwriting evidence to identify the testator’s signature

OR

3) refer to a judge

Question 25

what duties does a solicitor have regarding the execution of a will?

which case?

Answer 25

ideally the execution would be done in the sol’s office so it can be supervised

if done in testator’s own time - sol should explain how to sign the will and provide a warning that beneficiaries and those married to beneficiaries should not be witnesses (otherwise it affects their gifts)

If the testator executes the will at home, the solicitor should ask them to return the will so that the solicitor can check that s 9 appears to have been complied with and that the witnesses are not beneficiaries or their spouses or civil partners.

failure to do the above = potential negligence

It has been held that solicitors preparing wills owe a duty of care to the prospective beneficiaries - Humbleston v Martin Tolhurst Partnership (sols secretary incorrectly states will is in order - cohabitee sued for negligence + received damages equivalent to that which she would’ve received under the will)

Question 26

in which situations will the rules of intestacy apply?

Answer 26

1. where no will has been created or all wills have been successfully revoked (total intestacy)
2. Where there is a will, but for some reason it is invalid or it is valid but fails to dispose of any of the deceased’s estate (total intestacy).
3. Where there is a valid will, but it fails to dispose of all the deceased’s estate (partial
   intestacy). This will occur if the will simply omitted a gift of residue or if a residuary gift
   fails, for example because the residuary beneficiary has predeceased. In a partial
   intestacy the intestacy rules only apply to that part of the estate not disposed of by
   the will.

Question 27

is it possible to make any kind of provision or declaration to exclude specific people from inheriting under the intestacy rules?

Answer 27

no they are mandatory and the only way to avoid them is to make a will

There are situations in which the rules can be displaced but these arise in very limited circumstances, such as by an order made under the Inheritance (Provision for Family and Dependants) Act 1975

Question 28

if there is no will, do all the deceased’s assets become subject to the rules of intestacy?

Answer 28

no - remember some property passes independent of a will and the rules of intestacy e.g property held as joint tenants, insurance policies, pension benefits, trusts

Question 29

the intestacy rules impose a ____________ ________ over all the property

explain what the PRs role is in these circumstances, what should they do?

Answer 29

statutory trust

that property is then held on trust by the PRs

The trust provides that the PRs must pay:
the funeral
testamentary
administration
expenses (such as legal fees and any tax)
any debts (if necessary, the PRs can sell assets from the estate in order to raise cash to pay these debts and expenses)

The balance remaining (after setting aside a fund to meet any pecuniary legacies left by the deceased in the will) is the ‘residuary estate’ to be shared among the family under the rules of distribution set out in s 46 AEA 1925.

Although the PRs have a power of sale, they are not required to sell the assets which form the residuary estate. The PRs have power under s 41 AEA 1925 to appropriate assets in or towards satisfaction of a beneficiary’s share (with the beneficiary’s consent).

Question 30

Distribution where there is a surviving spouse or civil partner and issue…

according to the rules of intestacy, what does ‘spouse’ mean?

Answer 30

the person who the deceased was married to at the time of their death

all spouses are treated equally so the nature/quality of the relationship is irrelevant - even if the spouse has a new partner

a former spouse is excluded from the definition, but only from the point when the divorce is actually finalised - Re Seaford

a party to a void marriage is not a spouse for the purposes of the intestacy rules (e.g. one party already married or one is under-aged - treated as void ab inito - from the beginning) - Shaw v Shaw

a voidable marriage (e.g. because one entered into it under duress) is void until the court makes a nullity order

the above applies equally to civil partners

Question 31

Distribution where there is a surviving spouse or civil partner and issue…

what does ‘issue’ mean?

Answer 31

all direct descendants of the deceased e.g. children, grandchildren, great-grandchildren

adopted children included

included = those who’s parents were not married at the time of their birth

child of the spouse/civil partner/step children = not included

Question 32

where the intestate survives both the spouse/civil partner and issue, the ‘residuary estate’ is distributed as follows…..

Answer 32

a) the spouse/civil partner receives personal chattels, personal chattels are tangible moveable property other than any
such property which–

(i) consists of money or securities for money, or
(ii) was used at the death of the intestate solely or mainly for business purposes, or
(iii) was held at the death of the intestate solely as an investment.

b) In addition, the spouse or civil partner receives a ‘statutory legacy’ free of tax and costs plus interest from death until payment. The rate of interest payable is the Bank of England rate that had effect at the end of the day on which the intestate died. The ‘statutory legacy’ is a set amount fixed by Parliament and for deaths on or after 26 July 2023 is £322,000. If the residuary estate, apart from the personal chattels, is worth less than £322,000, the spouse receives it all (in a partial intestacy the spouse does not have to account for anything received under the will).

(c) The rest of the residuary estate (if any) is divided in half. One half is held on trust for the spouse or civil partner absolutely. The other half is held for the issue on the statutory trusts.

(you take the statutory legacy from the estate and then the spouse/cp gets half of the residuary estate and issue gets the other half of the residuary estate. if not residuary estate - issue gets nothing)

Question 33

The intestate’s spouse or civil partner must survive the intestate for ________ in order to inherit.

Answer 33

28 days

Question 34

what happens to the family home under the rules of intestacy?

Answer 34

(if not held as joint tenants)

if the family home is held in the intestate’s sole name or as tenants in common - intestate’s interest in the home forms part of the residuary estate and therefore subject to the intestacy rules

under the rules, the family home will not automatically pass to the surviving spouse/ civil partner

Question 35

what could the surviving spouse/civil partner do in the following scenario?

1. the surviving spouse’s entitlement under the intestacy rules amounts to £500,000 and the residuary estate includes the family home worth £300,000 (held in the
   intestate’s sole name)
2. what about if the spouse’s entitlement was £250,000?

Answer 35

looking at the right to appropriate the family home - only applicable if the spouse/cp is living in the property

1. if the family home forms part of the residuary estate passing on intestacy, the surviving spouse/ civil partner can require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate.
2. the spouse/ civil partner may still require appropriation provided they pay the difference, ‘equality money’,
   to the estate

Question 36

if a spouse/cp elects to use their right of appropriation to the family home, what must they do?

Answer 36

The surviving spouse/ civil partner must formally elect to exercise this right and notify the PRs in writing within 12 months of the grant of representation

Question 37

That part of the estate which does not pass to the surviving spouse passes to the intestate’s issue on ‘the statutory trusts’

The statutory trusts determine membership of the class of beneficiaries, and the terms on which they take, as follows……

Answer 37

1) primary beneficiaries = children alive at testator’s death (if none alive, next is remoter issue e.g. grandchildren who are alive)

2) The interests of the children are contingent upon attaining the age of 18 or marrying or forming a civil partnership (whichever happens first). Any child who fulfils the contingency at the intestate’s death takes a vested interest

3) If any child of the intestate predeceased the intestate, any children of the deceased child (grandchildren of the deceased) who are living at the intestate’s death take their deceased parent’s share equally between them, contingently upon attaining 18 or earlier marriage or formation of a civil partnership.

Great grandchildren would be included only if their parent had also predeceased the intestate. This form of substitution and division, whereby each branch of the family receives an equal share, rather than each member receiving an equal share, is known as a ‘per stirpes’ distribution. (per stirpes distribution)

4) If children or issue survive the intestate but die without attaining a vested interest, their interest would normally fail and the estate distributed as if they had never existed.
However, by virtue of an amendment to s 47 AEA 1925, if they die without attaining a vested interest but leaving issue, they will be treated as having predeceased the intestate so that they can be replaced by their own issue. To be substituted, the issue must be living at the intestate’s death.

Question 38

what happens when the intestate leaves a surviving spouse/cp but no issue?

Answer 38

the whole estate goes to the spouse/cp

note - spouse/cp must survive the intestate for 28 days in order to take

Question 39

how is the residuary state distributed where there is no surviving spouse/cp?

Answer 39

the residuary estate is divided between the intestate’s relatives in the highest category in the list below:

∘ issue
∘ parents
∘ brothers and sisters of the whole blood
∘ brothers and sisters of the half blood
∘ grandparents
∘ uncles and aunts of the whole blood
∘ uncles and aunts of the half blood
∘ the Crown, Duchy of Lancaster, or Duke of Cornwall (bona vacantia).

Each category other than parents and grandparents takes ‘on the statutory trusts’. This means
that members of the specified class categories take the estate equally (children under 18 take
their interest contingently upon attaining 18 or marrying earlier), and that issue of a deceased
relative may take that relative’s share. (Again, a person with an interest under the statutory trusts who dies without attaining a vested interest but leaving issue, will be treated as having predeceased the intestate so that they can be replaced by their own issue. To be substituted, the issue must be living at the intestate’s death.)

This means that relatives not mentioned in s 46 (eg nephews, nieces and cousins) may inherit
on intestacy if their parents died before the intestate.

The list works on an all or nothing basis. Working from the top, if anyone falls within the category, they will receive the whole of the entitlement (divided equally if there is more than one person in the category) and those in the next and lower categories receive nothing

Question 40

Tom dies intestate. He was not married to his partner, Penny, although the couple have a son, Simon, aged 13, Tom’s only child. Tom’s parents predeceased him, but he is survived by his only sibling, his brother, Bob, aged 40.

how will his estate be distributed?

Answer 40

looking at distribution where there is no spouse / cp

Tom’s estate is held on trust for Simon, contingently upon attaining 18 or marrying earlier.

If Simon dies before the contingency is fulfilled, Tom’s estate passes to Bob absolutely.

remember you can only vest your interest /take it up when you are 18/ married, so if you die before then, the estate goes to the next in the list

Question 41

Rose, a widow aged 80, is cared for by her step- daughter, Katya (the child of her deceased husband’s first marriage). Her only living blood relatives are cousins, the children of her mother’s brothers and sisters. Rose dies intestate.

how will his estate be distributed?

Answer 41

looking at distribution where there is no spouse / cp - look at list

Her estate is divided ‘per stirpes’ between her cousins (and the children of any cousins who predeceased her).
Katya receives nothing from Rose’s estate.

Question 42

what discretion does the crown have where an estate is passed to it bona vacantia?

Answer 42

discretion to provide for dependants of the intestate,
or for other persons for whom the intestate might reasonably have been expected to make
provision. That discretion could be exercised, for example, in favour of an individual who had
a close relationship with the intestate, but no entitlement under the intestacy rules such as a
step- child or a cohabitant.

The Treasury Solicitor’s policy is to require proceedings to be brought under the Act if possible as this enables all potential claimants to be involved and their respective interests weighed.

Question 43

when looking at the distribution of an estate, what is the position on adopted children?

Answer 43

for intestacy purposes, adopted children are children of their adoptive family (not their natural family)

If a person who was adopted dies intestate without spouse or issue, their estate will be distributed between the closest relatives in the adoptive family.

An adopted child may also inherit on the intestacy of any member of their adoptive family.

if a minor has a contingent interest in an estate and is subsequently adopted, their interest is preserved - this
exception is limited to parents, so an adopted child will still lose a contingent entitlement to the estate of other relatives.

Question 44

what is the legal position regarding division of an estate where children are born as a result of assisted reproduction

Answer 44

where a mother uses donated sperm it is her spouse or CP who is the father

can give notice that male cohabitant is to be the legal father

surrogacy - the ‘commissioning parents’ = able to apply to court for a parental order which confers legal parenthood exclusively to them

Question 45

Ann and Ben witness Tariq’s signature on his will. In the will Tariq gives £3,000 to Ann and £2,000 to her husband, Hari.

which is correct?

a) Ann cannot take her legacy but Hari can take is legacy

b) both Ann and Hari are unable to take their respective legacies

Answer 45

B is correct. A will witnessed by a beneficiary or the spouse (or civil partner) of a beneficiary remains valid but the beneficiary loses their entitlement (s15 Wills Act 1837). Ann has acted as a witness and so she will lose her entitlement as a beneficiary. As Ann is Hari’s spouse, Hari will also lose his entitlement (C is wrong).

Question 46

if an executor of a will is also a witness of a will, does it make the will invalid?

Answer 46

no

Question 47

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

Answer 47

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

Question 48

under the intestacy rules, does the family home automatically get transferred to the spouse/cp?

Answer 48

no - there is no automatic right for the family home go to the spouse/cp

the surviving spouse/ civil partner can require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate, if the spouse/ civil partner is living in the property.

Question 49

When interpreting a will, the task is to discern the testator’s intentions through the language of the will itself. in trying to establish those intentions, the court applies two basic presumptions, what are they?

when will the presumptions be rebutted?

Answer 49

a) non-technical words are given their ordinary meaning

b) technical words are given their technical meaning

presumptions rebutted = if from the will (and any admissible extrinsic evidence)
it is clear that the testator was using the word in a different sense.

Question 50

what is the basic rule when the court is interpreting the testator’s intention?

Answer 50

The court interprets the will by looking at the words in the will itself.

The basic rule is that the court is not prepared to consider other evidence in order to try to establish what the testator
intended.

If the meaning remains unclear the gift will fail for uncertainty

Question 51

what is the exception to the basic rule regarding a court’s interpretation of a testator’s intention in their will?

which case?

Answer 51

S21 Administration of Justice Act - permits extrinsic evidence (including evidence of declarations made by the deceased) to be admitted in one of three circumstances:

(a) in so far as any part of it is meaningless;
(b) in so far as the language used in any part of it is ambiguous on the face of it;
(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding
circumstances.

Thorn v Dickens [1906] - ‘all to mother’ but mother was dead, extrinsic evidence allowed showing he referred to his wife as ‘mother’

This was only allowed because there was no one fitting the description of ‘mother’ when the will was made.

Question 52

the court does not have the power to rewrite the testator’s will, but it does have the very limited power to ____________ or _________

in what circumstances could the court use this limited power?

give cases

Answer 52

correct or rectify the will - s.20 ADA

this arises where the testator’s intentions are clear, but the wording of the will does not carry them into effect

failure to carry out the testator’s clear intentions must have one of two causes:

1. either in consequence of a clerical error
   (Joshi v Mahida)
   OR
2. a failure to understand instructions e.g. sol misunderstood client’s instructions
   (Sprackling v Sprackling)

very narrow

Question 53

in what circumstances would it not be possible to rectify a will?

Answer 53

solicitor who wrote the will misunderstood the law or thought that the words chosen achieved the desired outcome, but they did not do so.

Question 54

what happens if words are included in a will by mistake?

Answer 54

the court may allow the will to be admitted to probate with those words omitted

but may also raise issues re testator’s knowledge and approval

Question 55

what is the basic rule regarding assets which form the subject matter of a gift?

Answer 55

s. 24 WA

the basic rule is that the assets are determined according to those in existence at the date of death – the will
is said to ‘speak from the date of death’.

A gift of ‘all my estate’ or ‘all the rest of my estate’ takes effect to dispose of all property
the testator owned when they died, whether or not the testator owned it at the time the will was made.

If the testator uses the word ‘my’ when referring to a specific asset (eg ‘my’ car) it is possible that the court could interpret this as meaning the gift is of the car which the testator owned at the date of the will.

However, if the asset concerned is generic in that it is capable of increase or decrease between the date of the will and the date of death, eg ‘my collection of cars’, then this will be taken to mean the cars in the collection at the date of death.

Question 56

what is the general rule regarding beneficiaries who are not named and are instead just described?

Answer 56

this basic rule differs froms.24 WA

beneficiaries are construed as to people alive at the time of the will’s execution - ‘speaks from the date of execution’ (not the time of death

If the will contains a gift made, say, to ‘Kate’s eldest daughter’ this is construed as a gift to the person who fulfilled that description when the will was made. If Kate has two daughters, Emily and Jenny, and Emily is the elder of the two, the gift passes to Emily. If Emily predeceases the testator, the gift does not pass to Jenny; although she is now Kate’s eldest surviving daughter, she did not fit the description at the time the will was executed.

Question 57

as a general rule, when gifts are left to family, family means blood relatives and not step children, which case was the exception to this?

Answer 57

Reading v Reading

The court found that there was sufficient evidence to demonstrate that the testator had intended his step- children to share a pecuniary legacy with his own children: the will included a substitutional gift of residue to both his own children and his step- children in the event that his second wife predeceased him, and the general wording
suggested step- children were intended to share in both cases.

Question 58

Ann dies in 2024 with a will leaving everything to ‘my nieces equally’.

One of her (now nieces formerly nephew) David obtained a gender recognition as a woman (Diana) in 2020.

is Diana entitled to anything?

are there any circumstances in which she would not be entitled to anything?

Answer 58

If the will is made before 4 April 2005, Diana cannot share in Ann’s estate because prior to the GRA, she would’ve be considered a nephew. If Ann’s will is made on or after 4 April 2005, David’s new gender will be recognised and she will be Diana/niece.

Question 59

if the devolution of property is different to what it would’ve been if the beneficiary hadn’t changed their gender, what can be done?

in other words where the intention of the will is defeated because of acquirement of gender…

Answer 59

make an application to the High Court

what powers does the High Court have if it is satisfied it ought to make an order?

it could order payment of a lump sum, transfer or settlement of property.

Question 60

what are trustees/PRs duties regarding investigating acquirement of gender in their administration of the estate?

Answer 60

they are protected from having to make enquiries about whether a full gender recognition certificate has been issued or revoked

and they are protected from any liability that may arise in relation to this

however this does not prevent the person with the acquired gender from following the property (unless it has been passed onto a third party who purchased it for value in good faith and without notice)

Question 61

a gift may fail for many reasons, what is the effect of a gift failing?

Answer 61

falls into the residuary estate and will be taken by the residuary beneficiary

where a gift of residue fails there will be a partial intestacy and the residuary
estate will pass under the intestacy rules

Question 62

what are the reasons a gift may fail?

what steps may the court take to try and prevent the gift failing?

Answer 62

1. uncertainty (as to the subject matter or recipient of the gift)
   - court may consider their powers of rectification
   - exception = charity is not sufficiently identified in the will, but if it is clear that the gift is exclusively for charitable purposes the court can direct which charity is to benefit.
2. beneficiary or their spouse witnesses the will (remember it doesn’t invalidate the will)
3. divorce and dissolution
   - Where after the date of the will the testator’s marriage or civil partnership is dissolved, annulled or declared void, any gifts left to former husband/wife/CP will fail
4. ademption
   - A specific legacy (ie a gift of a particular item or group of items of property) will fail if the testator no longer owns that property at death. The gift is said to be ‘adeemed’. Ademption usually occurs because the property has been sold, given away or destroyed during the testator’s lifetime.
   -Problems may arise where the asset has been retained but has changed its nature since the will was made. For example, where the will includes a specific gift of company shares, the company may have been taken over since the will was made so that the testator’s shareholding has been changed into a holding in the new company. In such a case, the question is whether the asset is substantially the same, having changed merely in name or form, or whether it has changed in substance. Only if there has been a change in substance
   will the gift be adeemed.
   - where the testator disposes of the property described in a specific gift but before death acquires a different item of property which answers the same description; for example a gift of ‘my car’ or ‘my piano’ where the original car or piano has been replaced since the will was made. It has been held that the presumption in such a case is that the testator intended that the specific gift was to be of the particular asset they owned at the date of the will so that the gift is adeemed.
5. Lapse
   - where the beneficiary of the gift dies before the testator (falls into residuary estate and if fails in there = intestacy)
6. Disclaimer
   - where the beneficiary refuses to accept the will
   - falls into residue or if not accepted by residuary beneficiary = intestacy
7. Forfeiture
   - shouldnt profit from killing the testator
   - exception of court intervention in unlawful killing

Question 63

a gift has been left to a beneficiary under a valid will. the testator dies and shortly after the beneficiary also dies, what happens to the gift?

Answer 63

goes into the beneficiary’s estate

Question 64

if the testator and the beneficiary die at the same time and the order of their deaths cannot be proven, what happens?

which case

Answer 64

the elder of the two is deemed to have died first

if the testator was older than the beneficiary,
the gift takes effect and the property passes as part of the beneficiary’s estate.

Scarle v Scarle [2019]

Question 65

If a gift is made ‘to A and B jointly’ and A dies before the testator, does B get the gift?

what about if the will gifted ‘everything to A and B in equal shares’?

Answer 65

yes - the whole gift passes to B (the gift has not lapsed)

no - the gift contains words of severance. A’s share lapses and B takes only one share.

A’s lapsed share will pass under the intestacy rules

Question 66

what is the exception to the doctrine of lapse?

Answer 66

where a will contains a gift to the testator’s child or remoter descendant and that beneficiary dies before the testator,
leaving issue of their own who survive the testator, the gift does not lapse but passes instead to the beneficiary’s issue

Question 67

what is the rule of forfeiture

what is the exception to the rule of forfeiture

what case

Answer 67

where a beneficiary of a will who kills the testator wont receive anything they would’ve been entitled to under the will

exception = unlawful killing (NOT MURDER) the court can intervene but must not intervene unless they are satisfied the justice of the case demands it having regard to the conduct of the deceased, the offender and the surrounding circumstances

must apply for relief within three months of the killing

Ninian v Findlay

(NOTE - IF THE SBAQ SAYS MURDER = NEVER EXCEPTION)

Question 68

what are the three methods of revocation?

summarise them

Answer 68

1. by a later will or codicil

-If a will does not contain an express revocation clause, it operates to revoke any earlier will or codicil by implication to the extent that the two are inconsistent.
- conditional revocation

2. by destruction

• ‘burning, tearing or otherwise destroying the same by the testator or
  by some person in his presence and by his direction with the intention of revoking the same’
• crossing out wording or writing revoked on the will = wont be destroyed - physical destruction is required
• if signature crossed out, the partial destruction may be seen to destroy the whole will
• if a less substantial part of the will is destroyed, may just destroy that part of the will
• The test is whether the remainder of the will is intelligible and can still operate in the absence of the destroyed part
• Cheese v Lovejoy - must have intention + destruction (e.g. accidental destruction wouldnt revoke because there is no intention)
• doctrine of dependent relative revocation - revocation conditional on for example a future will being drafted - if future will is not drafted, older version remains valid even if destroyed

3. by marriage/ formation of a civil partnership
   - exception = expected marriage with the particular person and a wish that the will is not to be revoked
   - a general hope of marriage is not sufficient

Question 69

looking at revocation of wills - what is the doctrine of mutual wills?

Answer 69

‘Mutual wills’ = the parties agree that neither party will alter or revoke either will after the death of the first testator.

In effect, there is a contract between the two parties that the terms of the wills are binding and cannot be amended unilaterally after the death of the first testator.

if the remaining testator tried to revoke the deceased’s will = doctrine of mutual wills steps in to create a constructive trust over the deceased’s estate for the original beneficiaries - in other words the original will remains valid

main difference from mirror wills = agreement not to revoke

Question 70

when will alterations take effect + not take effect?

think of obliteration

Answer 70

if they are done before the will is executed = valid provided the testator intended for them to be part of the will

the general position = alterations are presumed to have been made after the will was executed unless the contrary can be proved

alterations made after the will was executed will be valid if they themselves have been executed like a valid will (the initials of the testator + witnesses will suffice)

• An alteration which obliterates the original wording revokes the original wording by
  destruction, provided that the act of destruction is accompanied by the intention to revoke.
• The court may be prepared to apply the conditional revocation rule (dependant relative revocation) where the testator obliterates the original wording and adds some substitute wording e.g crosses out a gift of 10k so that it is wholly unreadable and writes above it 20k (+ validly executed like a will)

Question 71

testatrix appoints her husband to be executor but they subsequently divorce.

will the husband be the executor?

Answer 71

the appointment will not have effect because it is treated as though the husband predeceased her

this is why it is often prudent to appoint more than 1 executor

(no more than 4 can apply for grant of probate for the same assets)

Question 72

what is the default position on who pays inheritance tax when administering an estate?

a testator gifts their daughter a gift, what is the effect of the following wording:
‘subject to tax’
‘free from tax’

Answer 72

The default position is that the IHT on
the individual legacies is paid out of the residuary estate (so the legatee doesnt pay it)

‘subject to tax’ means the daughter would be responsible for the IHT on the gift

‘free from tax’ means the IHT will be paid out of the residuary estate

Question 73

if a will is silent on the costs of transporting a gift to the relevant beneficiary, who bears the costs?

a testator gives their daughter a house which has remaining mortgage debt on it. the will is silent as to who will inherit the mortgage debt. who inherits it?

Answer 73

the beneficiary

the mortgage debt falls on the beneficiary who receives the charged property (ADA)

Question 74

a testator leaves a gift for his daughter in his will. the daughter pre-deceases the testator. the daugter has a son. who is awarded the gift

Answer 74

the son

and if the son predeceases the testator - goes into his estate or fails and becomes partial intestacy?

ASK - think the gift only goes into the rules of intestacy if it fails so it would go into the son’s estate

Question 74

why is putting an express substitution in for gifts awarded in a will important?

Answer 74

so that the gift doesn’t fail and become subject to the rules of intestacy

Question 75

should a sol take instructions from a third party in drafting the will?

Answer 75

code of conduct says you only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf

so in normal circumstances can take instructions from third party in some circumstances, however solicitors should NOT take instructions from anyone but the client for the drafting of a will.

It would not be in the best interests of the client to take instructions from an intermediary.

Question 76

what are the professional conduct issues that arise when a testator appoints the sol who has drafted the will to also be their executor?

in what circumstances could the sol do this?

Answer 76

gives rise to a potential ‘own interest conflict’ because the solicitor will charge
remuneration for acting as executor

you should be satisfied that the client has made their decision on a fully informed basis. This includes:

• explaining the options available to the client regarding their choice of executor
  (ie if the estate is small and straightforward, informing them they may not need a sol as executor and it may not be cost effective)
• ensuring the client understands that an executor does not have to be a professional
  person or a business, that they could instead be a family member or a beneficiary
  under the will, and that lay executors can subsequently instruct a solicitor to act
  for them if this proves necessary (and can be indemnified out of the estate for the
  solicitors’ fees);
• recording advice that is given concerning the appointment of executors and the
  client’s decision.

Question 77

Personal representatives (PRs) and trustees have a number of statutory administration powers. Some may need to be amended. A will which might give rise to a trust (for example, because there is a substitutional gift to children of a primary beneficiary who predeceases the testator) will benefit from the inclusion of even more express powers.

list the powers of PRs that should be included in all wills irrespective of whether they give rise to a trust

Answer 77

– Charging clause
– Power to appropriate assets without the beneficiary’s consent (s 41 gives PRs the power to appropriate any assets in the estate in or towards satisfaction of any legacy or any interest in residue provided that the appropriation does not prejudice any beneficiary of a specific legacy. Section 41 provides that the legatee to whom the assets are appropriated (or their
parent or guardian if they are a minor) must consent to the appropriation.)
– Power to insure
– Receipts (infant beneficiaries and charities)
– Self- dealing (The fiduciary position of PRs and trustees prevents them from entering into any transaction where their duties and personal self- interest conflict)

Question 78

Personal representatives (PRs) and trustees have a number of statutory administration powers. Some may need to be amended. A will which might give rise to a trust (for example, because there is a substitutional gift to children of a primary beneficiary who predeceases the testator) will benefit from the inclusion of even more express powers.

list the powers that would be considered where a trust may arise

Answer 78

– Power to appropriate assets without the beneficiary’s consent (s 41 doesnt apply here so would need to include this power expressly)
– Power to invest
– Power to purchase land
– Power to sell personalty
– Power to use trust income
– Power to make advancements of trust capital
– Clauses limiting control by beneficiaries
– Special provisions if the trust may include land or the testator’s business