Wills and Adminstration of Estates Flashcards
Wills
Describe the criteria for testamentary capacity according to Banks v Goodfellow (1870).
The criteria include understanding the nature and effects of making a will, the extent of property, and moral claims to which they ought to give effect.
Define the test set out in the Mental Capacity Act 2005 for determining capacity to make a will.
The test includes the ability to understand relevant information, retain it, use or weigh it in decision-making, and communicate the decision.
How is mental capacity presumed in the context of making a will?
Mental capacity is presumed if the testator had capacity at the time of giving instructions, the will is prepared according to those instructions, and the testator understood they were executing a will.
Do both tests need to be met for a testator to have capacity to make a will?
If a testator meets both the Banks v Goodfellow test and the Mental Capacity Act 2005 test, it can be concluded that they have the capacity. If only one test is met, further inquiry is needed.
Describe the burden of proof regarding testamentary capacity when it is questioned.
The burden of proof lies on the person propounding the will. If the will is formally valid and appears rational, the burden of proof shifts to the person opposing the will.
What is the significance of proving a lucid interval in cases where the testator is not normally compos mentis?
In such cases, where the testator has a long-term mental disability, executors need to prove a lucid interval to establish capacity to make a will.
Describe the burden of proving undue influence in challenging a will.
The burden of proving that undue influence was exerted in challenging a will falls on the person contesting the will, with a high threshold to meet.
Define the formal requirements for a valid will under the Wills Act 1837.
A valid will must be in writing, signed or acknowledged by the testator in front of two witnesses, who also sign in the presence of the testator.
How can an executor renounce their role in administering an estate?
An executor can renounce their role by filing a signed statement with the Probate Registry, resulting in a permanent withholding of responsibility.
What is the difference between executors and administrators in estate administration?
Executors are individuals appointed in a will to administer the estate, while administrators handle estate administration without being appointed in a will.
Describe the process of reserving power as an executor in estate administration.
Reserving power as an executor allows one to sit out the administration of the estate initially but retain the option to step in later if desired, without permanently renouncing responsibility.
Explain the maximum number of administrators or executors allowed to administer a will.
A maximum of four administrators or executors can be appointed to administer a will, distributing assets according to the will’s instructions.
What is the significance of an attestation clause in the execution of a will?
An attestation clause creates a presumption of proper execution when present in a will, aiding in establishing the validity of the document.
How can a witness to a will be disqualified from benefiting under that will?
A witness to a will is disqualified from benefiting under it unless there are two additional witnesses or they marry the testator after the will is made.
Describe the revocability of a during the testator’s lifetime.
The will is revocable during the testator’s lifetime as long as the testator has the capacity to do so.
How can a will be revoked by executing a new will or codicil?
A will can be revoked by executing a new will or codicil that includes an express revocation clause. If the new document does not have such a clause, inconsistent provisions in the codicil or later will prevail.
Define the concept of destruction of wills as a method of revocation.
Destruction of a will through tearing, burning, or other means by the testator or at the testator’s direction in their presence with the intent to revoke it is considered a valid method of revocation.
What is the impact of marriage on a testator’s will according to the Wills Act 1837?
Marriage automatically revokes any prior will of the testator, as stated in Section 18 of the Wills Act 1837.
How can a testator prevent the revocation of a will by marriage?
A testator can prevent the revocation by marriage by expressly making a will in contemplation of marriage, clearly indicating the intention not to revoke the will upon marriage.
Describe the doctrine of dependent relative revocation in the context of wills.
The doctrine of dependent relative revocation states that if a will is destroyed with the intention that a later will is valid, but the later will is found to be invalid, the revocation is ineffective, and the destroyed will stands.
Describe the concept of ademption in context of gifts in a will.
Ademption occurs when a specific gift mentioned in a will is no longer part of the estate, leading to the failure of the bequest.
What is the significance of the three certainties in relation to gifts in a will?
The three certainties required for a valid gift in a will are certainty of intention, subject-matter, and objects.
How does abatement work in the distribution of assets in an estate?
Abatement dictates the order in which assets are used to pay for the estate’s expenses, typically starting with the residuary estate, followed by general legacies, and then specific legacies.
Define the concept of lapse in the context of wills and bequests.
Lapse refers to the situation where a beneficiary must outlive the testator in order to receive the bequest; if the beneficiary predeceases the testator, the gift fails.
Explain the rebuttable presumption regarding gifts to executors in a will.
There is a presumption that a specific or pecuniary legacy to an executor is conditional upon them acting as such, which can be rebutted if the executor explicitly or implicitly rejects the condition.
What are demonstrative gifts in the context of wills and how are they different from general gifts?
Demonstrative gifts are general gifts paid from a specific fund, while general gifts are not distinguished items and do not specify particular assets.
How do gifts to witnesses in a will differ from regular gifts?
Gifts to witnesses in a will are subject to stricter rules and may fail unless there are at least two additional witnesses present, apart from the benefiting witness.
Describe the scenario where ademption does not apply in the context of wills.
Ademption does not apply to general and demonstrative gifts, gifts disposed of without authority, or gifts where the property has not changed in substance.
Explain the concept of residuary gifts in a will and their typical treatment in estate distribution.
Residuary gifts refer to anything not specifically disposed of in a will, and they often form the remainder of the estate after other gifts are distributed; they are commonly used to cover debts and expenses.
Describe the special rights of a surviving spouse in intestacy laws.
Special rights include inheriting the matrimonial home, electing to appropriate the home, and potentially inheriting up to £322,000 and/or 1/2 of the residue.
Define statutory trusts in the context of intestacy laws.
Statutory trusts refer to the legal provisions that dictate how assets passing under intestacy (excluding to a surviving spouse) are distributed, typically among children and their issue.
How are property passing outside the estate, such as joint property and life policies, handled in intestacy laws?
Jointly owned property automatically passes to the surviving joint tenant(s), while life policy proceeds are paid directly to PRs or named beneficiaries.
Describe the order of entitlement in intestacy laws when there is no surviving spouse or children.
The order of entitlement includes parents, whole blood siblings, half siblings, grandparents, uncles and aunts, half uncles and aunts, and may eventually pass to the Crown if no family is found.
What are the conditions for obtaining a share of the statutory trust in intestacy laws?
Obtaining a share is contingent on reaching 18 years of age or marrying, ensuring that the distribution is made to individuals who have reached a certain level of maturity or commitment.
Do lifetime gifts made in contemplation of death play a role in intestacy laws?
Yes, lifetime gifts made in contemplation of death (donatio mortis causa) are considered in the distribution of assets, potentially affecting the overall estate distribution.
Describe the role of statutory nominations in intestacy laws.
Statutory nominations allow asset holders to designate a third party to receive assets, typically on assets not exceeding a certain value in specific financial institutions.
How are assets abroad handled in intestacy laws?
Assets abroad may not pass under a UK will due to various reasons, such as the will not being recognized in certain jurisdictions, potentially leading to complexities in estate distribution.
Describe Donatio Mortis Causa.
It is a gift made in contemplation of the donor’s death, valid if certain criteria are met, including being conditional on death and involving a valid delivery of the subject matter.
