Wills and Estates Flashcards
When will the presumption of intention (knowledge and approval) not apply?
- If the testator is blind or illiterate
- When there are suspicious circumstances
In these circumstances, the gift will fail unless evidence of the testator’s knowledge and approval is shown by the person putting forward the will.
Will the presumption of capacity apply if T is blind?
Yes, but the presumption of knowledge and approval will not apply in these circumstances
What are the implications when the rebuttable presumptions do not apply?
If the presumption applies, then a challenger will need to provide evidence that the person did not have capacity or did not have knowledge or approval by fear, fraud, undue influence or mistake
If the presumption does not apply (i.e. where the testator is illiterate, blind, or there are suspicious circumstances), the person relying on the will will need to prove that they did have the proper intention to make the will
When can solicitors accept large gifts in a client’s will?
Only when the client has taken independent legal advice
What is the definition of duress for the purposes of wills?
When the testator has been injured or threatened with injury to force them to make the gift
What is a grant in solemn form?
The grant of a will in solemn form is when the will is contested and the Court has to declare whether it is valid
What is the definition of undue influence (wills)?
It is something that overpowers the volition of the testator. A coercion which overpowered the freedom of the action of the testator.
What happens if an attestation clause is not included?
The person admitting the will into probate has to prove that the formalities were followed, normally by getting a witness to testify
When will a special attestation clause be required?
When the testator is blind or illiterate
What are the rules on illiteracy/blindness for witnesses and testators
- An illiterate person can be a witness but a blind person cannot
- An illiterate or blind testator will be presumed not to have knowledge or approval of their will unless contrary evidence is put forward.
It is possible for another person to sign on behalf of the testator if they are blind or illiterate. However, the testator must be present, and the will should be read to them before the will is signed on their behalf
Who cannot be a witness to a will?
- A blind person
- A beneficiary
- Someone who lacks mental capacity
If a will references another document, what are the requirements for that document to be validly incorporated?
The document must exist at the time of the will and be referred to in the will as so existing. There cannot be a future intention.
What are the requirements for a valid codicil?
- It makes reference to the will
- The requirements for a valid will have been met
- A codicil may remedy a gift which was void in the original will because the beneficiary witnessed it
- Should include a clause confirming the unamended parts of the will
When will a will not be revoked by marriage?
When the testator was expecting to marry a particular person at the time the will was made, and and they did not intend for the will to be revoked
What is the implication if only part of a will is destroyed?
It may result in only that part of the will being revoked
When will the presumption of an intention to revoke the will apply?
When the will is found mutilated at the date of death OR if the will was last known to be in the possession of the testator but which cannot be found
What is Dependent Relative Revocation?
The doctrine that if a testator revokes his will in the mistaken belief that a particular result will ensue, or is contingent on some future event and that event did not take place, then the revoked will may still hold good if it can be reconstructed from a copy or draft
What are mutual wills?
This forms a contract between the parties that the wills are to be irrevocable and will remain unaltered. This creates a constructive trust in favour of the beneficiaries under the will (they are not advisable)
When does the will normally speak from?
The will speaks from the date of death unless a contrary intention is apparent from the will. A contrary intention will be apparent by the use of the term ‘my car’,= from date of execution
but if the words ‘all my cars’ are used, then this will normally speak from the date of death (because this is something that can vary in value)
What are the different types of legacies?
Specific legacy - an identified part of the estate
General legacy - does not identify a specific item e.g. ‘a BMW car’ (a beneficiary is entitled to require the executors to purchase this if it is not in the estate at the time of death
A pecuniary legacy - a gift of cash. This is usually general but can be demonstrative (i.e. identifies the source from where it will come). If it is demonstrative, and the source of funds is no longer available, the beneficiary can ask the executors to meet shortfall from other cash or assets in the estate
When are beneficiaries determined under the will?
From the date of execution. As such, a gift to a specific person who dies before the testator will normally lapse.
When will a gift to joint tenants lapse?
If one of the joint tenants dies before the testator, then the whole gift will pass to the other joint tenant. If made to tenants in common (in equal shares), then the share of the person who died will lapse.
If a gift is made to certain beneficiaries conditional on them surviving a certain amount of days, what happens to the gift if they do not survive for that amount of days?
The gift will fail and fall back to estate
What are the rules about gifts to the deceased’s issue?
If a gift is made to the testator’s child (or grandchild) and that person dies before the testator, the gift will not lapse if that person has living issue, it will go to their issue. This includes children in the womb!!
However, this does not apply if there is a contrary intention in the will (i.e. to such of my daughters who shall survive me…)
When will a gift to a beneficiary/witness not fail?
If there are at least two other witnesses who are not beneficiaries (or their partners or children).
Who is classed as children for the purposes of a will?
legitimate children, illegitimate children and adopted children but NOT stepchildren
Do minor beneficiaries have a vested interest?
Yes, if there are no conditions attached, but they will not receive trust property until they are 18
What are the class closing rules?
Vested interest: the class closes when at least one beneficiary has a vested interest. For example, ‘£5,000 to the children of Z’. If at the date of the testator’s death there is a living child of Z then they will inherit and the class will be closed. If no child, then will stay open until Z’s death
Contingent interest: the class closes when one beneficiary living at the date of the testator’s death fulfils the condition, and will include all those children then living who go on to fulfil that condition. For example, £5,000 to the children of Z who reach the age of 18. If there is one 19 year old, a 5 year old and a baby in the womb, the class will close around all of those living children (provided they reach the age of 18), and will not include anyone born after the death of the testator. If there is a 15 year old and 14 year old, the class will only close once one of them turns 18 (so others may join in that time)
If the will states “£5,000 to EACH of the children of Z who reach the age of 18” then the class closes at the date of the testator’s death. If no children exist at that point, then the gift fails.
What is a summary of the class closing rules?
£5,000 to the children of Z - closes at the date of death if one beneficiary has a vested interest (e.g. there is already a child0. If no beneficiary yet has a vested interest, it remains open until the death of Z.
£5,000 to the children of Zebadee who attain the age of 18 - closes at the date of the testator’s death if any child has fulfilled the contingent interest. I.e. if there are any living children at the testator’s death the class will close around all of the ones that are living once one of them reaches 18.
£5,000 to each of the children who attain the age of 18 - class closes at the date of the testator’s death and fails if there are no children
How long does the spouse have to survive in order to take the deceased’s estate under the intestacy rules?
28 days
Intestacy rules - order of entitlement
- Spouse
- Issue (under 18 can inherit but will not receive the money until their 18th birthday)
- Parents
- Siblings
- Half brothers and sisters
- Grandparents
Intestacy - what is the rule of appropriation?
A surviving spouse can ask the PRs to give the matrimonial home (or the deceased’s share in it) to them to satisfy their entitlement under the intestacy rules. If this is more than their share, they will have to pay over the balance as equality money.
Does ‘statutory trust’ - i.e. the fact that issues take instead of the actual beneficiary apply to intestacy?
Yes!
Intestacy - What does statutory trusts mean?
That if the beneficiary dies and is survived by issue (as long as they are over the age of 18 or married earlier) the issue will inherit.
Intestacy - what happens if a potential beneficiary under the intestacy rules dies before they are 18 or married earlier (i.e. have a vested interest)?
Their issue (if any) will inherit. If they have no issue, the estate will be administered as if they never existed.
What happens if an adopted individual dies intestate without spouse or issue?
Their estate will be distributed between the closest relatives in the adoptive family.
An adopted individual can also inherit on the intestacy of any member of their adoptive family
What happens if a child whose parents were never married dies intestate?
The law presumes that their father has not survived them (unless there is evidence to the contrary)
Which property passes outside of the will/intestacy rules? (THIS CANNOT BE VARIED BY THE TERMS OF THE WILL)
- Life assurance policies in the name of a specific beneficiary
- Pension scheme death benefits in the name of a specific beneficiary
- National Savings Bank or Savings Certificates with a specific beneficiary (NOT EXCEEDING £5,000).
- Life interests in a trust (they pass to the remainderman on death and do not remain part of the estate - but will be taxed for IHT)
- Gifts with reservation of benefit (will be taxed but does not actually form part of death estate)
- Property owned as a joint tenant (will be taxed but does not actually form part of death estate)
When will the naming of an executor in a will be void for uncertainty?
If they are referred to by description of their office (i.e. my excutor) but not actually named
Can a minor or someone lacking mental capacity be named as an executor?
No!
What happens if a spouse is named as executor and then they get divorced?
The executorship will be invalid - the former spouse is treated as having died
Would notifying the deceased’s bank of the death be counted as intermeddling in the estate?
Yes (probably)
What formalities are required to renounce an executorship?
- Renunciation must be in writing
- Signed by the executor
- Contain a statement that the person has not inter-meddled, and
- Be signed by a disinterested witness
- Must be filed at the Probate registry
Once they have renounced executorship, can the executor reclaim probate?
No, not without the permission of the Court
What happens if an executor who is also a trustee renounces their executorship?
They remain a trustee even though they have renounced their executorship (they would have to renounce the trusteeship separately)
How can someone with power reserved go on to take probate?
They do not need the consent of any other executors or beneficiaries, they just have to apply to the Court for a grant of probate
Where are probate matters heard?
- Family division of the High Court (non-contentious)
- Chancery division of the High Court (if contentious)
- County Court if the estate is below £350,000
Which types of assets can be sold without first taking a grant of probate?
- Amounts up to £5,000 in National Savings Certificates, Premium Bond savings or National Savings Bank Accounts
- Chattels such as furniture, jewellery, clothing and cars
- Quoted shares
(All that needs to be shown is a death certificate)
PROBATE - may one executor take a grant of probate and act alone?
Yes (but not a minor or someone who is the divorced spouse)
PROBATE - what is the maximum amount of executors which may be appointed?
4 (different parts of the estate can have different executors)
