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(FLK2) Wills and Admin > Wills and Testacy > Flashcards

Wills and Testacy Flashcards

1
Q

What are the Requirements of a Valid Will?

A

Requisites on Form and Procedure:

  • The Will is in writing.
  • The Will is Signed by the Testator, or by some other person in its presence and by its direction.
  • The Testator’s Signature is made or acknowledged before at least 2 Adult, Capable Witnesses present at the same time.
  • In the Testator’s presence, each Witness either:
    • Attests and Signs the Will; or
    • Acknowledges the Testator’s Signature.

Requisites on Intention and Capacity:

  • The Testator has Testementary Capacity at Instruction.
  • The Testator must be an Adult, unless it is in the military, be free from Duress or Undue Influence at Execution.
  • The Testator generally intends to create a Testementary Document and specifically intends, by its Signature, to give effect to the specific Will before it.

Wills Act 1837 —§9.

“Presence” includes videoconference or other means of visual transmission.

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2
Q

What are the Requirements for Testementary Capacity?

A

The Testator must:

  • Understand the nature and effect of writing a Will.
  • Appreciate the extent of the Property being disposed.
  • Understand and appreciate the moral considerations of distributing its Estate.
  • Have no mental disorder that impinges upon their moral or cognitive factulties in diposing of its Property by Will.

Banks v Goodfellow (1870).

Testementary Capacity is relatively easy to prove.

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3
Q

Can a Will still be Valid if the Testator lacked Testementary Capacity at the time of Execution?

A

Yes, but only if the Testator:

  • Had Testamentary Capacity when they gave instructions for their Will;
  • The Will was prepared according to those instructions; and
  • At Execution, the Testator understood they were signing a Will for which they previously gave instructions.

Parker v Felgate (1883).

This is relevant where a Testator’s Testamentary Capacity fluctuates over time or suddenly declines.

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4
Q

What is the Golden Rule of Testementary Capacity?

A

If ever in doubt:

  • Instruct a medical professional to assess the Testator’s Capacity; and
  • Record their evaluation and conclusion.

Kenward v Adams [1975].

This is best practice, not a legal obligation, and does not conclusively determine Testementary Capacity. Also, failing to follow it is not necessarily malpractice if you have solid justification.

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5
Q

Is there a Presumption of Capacity?

A

Yes, if the Will has been duly executed and prima facie seems rational.

Anyone who wishes to challenge validity on grounds of incapacity must provide evidence sufficient to raise doubt, and if successful, the presumption is rebutted and the burden of proof reverts to the Propounder

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6
Q

When will a Court authorise the Execution of a Will on behalf of an Adult who lacks Capacity?

A

When it is persuaded there are grounds to overlook incapacity, namely because it is in the person’s best interests to do so.

Mental Capacity Act 2005 — s. 18(1).

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7
Q

Is there a Presumption of Knowledge and Approval?

A

Yes, unless:

  • The Testator is blind or illiterate;
  • The Will was signed by another on their behalf; or
  • There are suspicious circumstances.

Absent a Presumption and an adequate Attestation Clause, an Affidavit of Knowledge and Approval is necessary to submit the Will to Probate.

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8
Q

What is Undue Influence?

A

Coercion against another’s judgement or honest intentions.

The Victim does not genuinely exercise choice, surrendering to pressures they are unable to withstand.

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9
Q

What is the Consequence of Duress or Undue Influence on a Will?

A

Either particular provisions or the entire Will are rendered void.

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10
Q

Can a Beneficiary act as a Witness to a Will?

A

Yes, but if they do, they cannot inherit under the Will.

Wills Act 1837 — s. 15.

Here, a Beneficiary is anyone who gains any benefit under the Will.

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11
Q

What is the General Structure of a Will?

A
  • Introductory Clauses.
  • Commencement.
  • Revocation.
  • Burial & Funeral Wishes.
  • Appointment Of Executors & Trustees.
  • Appointment Of Guardians.
  • Specific Gifts.
  • General Gifts.
  • Demonstrative Gifts.
  • Pecuniary Gifts.
  • Residuary Gift.
  • Administrative Clauses.
  • Date & Attestation.
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12
Q

What is the Purpose of the Commencement Clause?

A

To identify the Testator, using their full name and address, and the document’s objective.

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13
Q

What is the Purpose of the Revocation Clause?

A

To nullify all previous Testementary documents, granting the present iteration supremacy.

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14
Q

What is the Purpose of the Burial & Funeral Wishes Clause?

A

To outline specific instructions regarding disposition of remains, burial, and the funeral.

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15
Q

What is the Purpose of the Appointment of Executors & Trustees Clause?

A

To appoint an Executor and a Trustee, whether absolutely or with qualifications.

Often, the Executor and Trustee are the same person.

A Testator can appoint up to four Executors, and it is wiser to have more than one.

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16
Q

What is an Executor?

A

A Personal Representative (“PR”) of the Deceased, responsible for collecting their assets and administering their Estate.

The difference between an Executor and Administrator is that the latter is appointed by the Non Contentious Probate Rules, not the Deceased’s Will.

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17
Q

How is a Trustee’s Role distinct from an Executor’s?

A

The Trustee is responsible for managing trusts that persist after administration for as long as they exist.

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18
Q

What is the Purpose of the Appointment of Guardians Clause?

A

To appoint a Legal Guardian for the Testaor’s dependants.

Children Act 1989 — s. 5.

This usually does not take effect until the surviving parent dies.

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19
Q

What is a Specific Gift?

A

A Gift of a particular asset.

Drafting must be especially precise.

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20
Q

What is a General Gift?

A

A Gift that is not distinguished from property of a similar type.

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21
Q

What is a Demonstrative Gift?

A

A General Gift, usually Pecuniary, that must be paid out of a specific fund.

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22
Q

What is a Pecuniary Gift?

A

A Gift of money.

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23
Q

What is a Residuary Gift?

A

A Gift of the remainder of the Testator’s Succession Estate following all dispositions under the Will or any Codicils.

24
Q

What is the Purpose of the Administrative Powers Clause?

A

To outline the powers of Executors and Trustees to ensure proper administration and management in line with the Deceased’s intentions.

The standard provisions produced by the Society of Trusts and Estates Practitioners (the “STEP Provisions”) are nationally recognised and widely used in practice.

If a Will contains no express administrative powers, then statutory and common law powers will apply by default.

25
Q

What is the Purpose of a Date & Attestation Clause?

A

To document that the Will was properly executed.

In the absence thereof, or in the presence of a poorly drafted clause, proof of proper execution is required

26
Q

Generally, from which Date does the Will speak?

A

The date of the Testator’s death unless contrary intention is shown.

Wills Act 1837 — s. 24.

Accordingly, every Will is assumed to speak and take effect as if it had been executed immediately before the Testator’s death.

27
Q

What is the Class Closing Rule?

A

Membership in a class becomes exclusive once a Beneficiary gains a vested interest.

This is why express wording as to class composition is necessary.

28
Q

Who bears the Burden of Taxes, Debts, Costs, and Expenses?

A
  • Generally, the Residuary Estate; however
  • Absent express language to the contrary, Legacies are made subject to associated Expenses.
29
Q

What is the Commorientes Rule?

A

Where two deaths occur under circumstances that make it unclear who died first, it will be assumed that the eldest died first.

LPA 1925 — s. 184.

For tax purposes, however, the deaths are treated as simultaneous.

To avoid this problem, simply include a Survivorship Clause.

30
Q

What is a Survivorship Clause?

A

One that makes inheritence conditional on the Beneficiary surviving the Testator by a specific period of time.

31
Q

What are the Requirements for Incorporating an Unexecuted Document into a Will?

A
  • The Document must exist at the Will’s Execution.
  • The Will must refer to the Document as in existence at Execution.
  • The Will must clearly identify the Document.

Wills Act 1837 — s. 9.

You can obviate this by expressly incorporating the document into the Will, e.g. by making it a Schedule.

32
Q

What are Three Types of Alteration to a Will?

A

Obliteration:

  • The erasure or crossing-out of text so as to be illegible.

Interlineation:

  • The insertion of additional text between lines of texts, usually to clarify or add ommitted information.

Miscellaneous:

  • Any other change that is legible.
33
Q

What is the General Rule on the Validity of Alteration to a Will?

A

They are Invalid if made after the Will’s Execution.

Even if made beforehand, it is good practice to ensure all Alteration are Attested. If it is not, Re-Execution of the Will or Execution of a Codicil may be required.

34
Q

Regarding Alteration, what is the Presumption on Timing?

A
  • The Rebuttable Presumption that any Alteration was made after Execution.
  • Affidavits are required to Rebut the Presumption.
35
Q

How can an Alteration made after Execution be Validated?

This is called ‘Attestation’.

A

If it is Executed in the same manner as a Will.

The Initials of the Testator and Witness are acceptable.

36
Q

Regarding Alterations, what are the Exceptions to the General Rule?

A

Obliteration of Original Wording:

  • If the Original Wording is not apparent, the Obliteration is treated as a Valid Revocation.
  • ‘Apparent’ means decipherable naturally or without Extrinsic Evidence.
  • Extrinsic Evidence is only allowed if:
    • The Revocation was Conditional.
    • A Third Party made the Obliteration.
    • The Testator did not Intend to Revoke.

Blank Spaces:

  • If a Blank Space is filled in, that is presumed to have happened before Execution, meaning the information inserted is Valid.
37
Q

What is a Codicil?

A

A Testementary Document that modifies a Will without replacing it, whether by:

  • Revival.
  • Addition.
  • Alteration.
  • Revocation.
38
Q

Which Wills can a Codicil not Revive?

A

Those that have been Destroyed.

39
Q

What are the Requirements of a Valid Codicil?

A

The same as those of a Valid Will.

40
Q

Aside from Addition, Amendment, or Revocation, what is the Direct Consequence of Executing a Codicil on a Will?

A

Re-Execution, updating its Interpretation Date to the Codicil’s Execution Date.

This also applies to any referrenced Codicils.

41
Q

Regarding Codicils, what are the most common Drafting Pitfalls?

A
  • Incorrect References: Misdating or misreferencing the Will or prior Codicils.
  • Omitting Changes to Personal Details: Failing to note updates to the Testator’s name or address.
  • Faulty Clause Numbering: Errors in numbering, especially when adding standalone clauses.
  • Ignoring Previous Codicils: A new Codicil that only refers to the Will and not earlier codicils.
  • Not Confirming Unchanged Provisions: Neglecting to affirm which parts of the Will remain unaffected.
  • Incoherence with Original Will: The Codicil’s provisions causing chaos by not aligning with the Will.
42
Q

Regarding Codicils, what are the Best Practices for Drafting?

A
  • Accurate References: Correctly reference the dates of the Will and any prior Codicils.
  • Maintain Consistency: The Codicil should integrate seamlessly with the Will, without conflicting instructions.
  • Explicitly State Changes: Clearly indicate the extent to which the Testator Confirms or Revokes the Will and any previous Codicils.
43
Q

Which Issues with a Will can a Codicil Correct?

A
  • Improper Execution of the Original Will.
  • Attestation of Manuscript Alterations: These must exist before the Codicil and be expressly referred to thereby.
  • Witnessing Errors: If a Beneficiary is made a Witness, the use of different Witnesses for a Codicil can restore its entitlement.
44
Q

If a Revocatory Codicial is later itself Revoked, are the Clauses it Revoked automatically Revived?

A

No.

The same applies with Resurrective Codicils.

45
Q

How can a Will be Revoked?

A
  • Destruction.
  • Effective Alteration.
  • Creation of a Later Will.
  • Creation of a Later Codicil.
  • Testator’s Divorce.
  • Testator’s Subsequent Marriage.
46
Q

When is a Will Revoked by Destruction?

A
  • The Testator completely destroys the original, physical Will, with clear Revocatory intention.
    • Destruction by another is only Valid if done in the Testator’s presence and at its instruction.
  • At Destruction, the Testator must have had Testementary Capacity.
47
Q

What is the Rebuttable Presumption of Revocation?

A

If a Will known to be in the Testator’s possession cannot be found after Death, the Will is presumed Revoked by Destruction.

48
Q

When is a Will Revoked by Will?

A
  • The Testator drafts a New Will that includes an Express Revocation Clause.
    • Only clear language indicating an intention to Revoke earlier Wills will suffice.
  • Absent an Express Revocation Clause, Revocation may be Implied if an Old Will conflicts with the New Will.
49
Q

When is a Will Revoked by Codicil?

A
  • The Testator drafts a Codicil to Revoke or Alter specific Clauses.
    • Only clear language indicating an intention to Revoke or Alter a Will will suffice.
  • Absent Express Language, the Codicil only overrides the Will to the extent that its provisions conflict.
  • Destroying a Will does not necessarily Revoke any associated Codicils.

If discrepancies arise, Affidavits may be used to clarify the Testator’s Intent.

50
Q

What is a Mutual Will?

A

Definition:

  • Two Testators agree to each make Wills based on Agreed Terms; and
  • To not Alter or Revoke their Wills without the other’s consent.

Legal Effect:

  • If one Testator Alters or Revokes its Will after the other’s Death, contrary to the Parties’ Agreed Terms;
  • A Constructive Trust may be imposed on the Survivor’s Property to enforce the Original Agreement.
51
Q

What is a Mirror Will?

A

Definition:

  • Two Testators agree to each make Wills that are identical, or very similar, to one another.

Legal Effect:

  • Unlike a Mutual Will, the Parties are not Bound to any Terms, and may Alter or Revoke their Wills freely.
52
Q

What is the Effect of entry into a Marriage or Civil Partnership on a Will or Codicil?

A

Automatic Revocation of all Wills and Codicils.

53
Q

How can a Will avoid Revocation by Marriage or Civil Partnership?

A

By including a Clause that states:

  • The Will was made “in contemplation of marriage”.
  • The name of the Intended S/CP.
  • The upcoming Ceremony.
  • The Testator’s Intention to maintain the Will’s Validity.
54
Q

What is the Effect of Divorce or Dissolution on a Will?

A
  • Automatic Revocation of provisions concerning the Former S/CP.
  • The Will is read as if the Former S/CP Died on the Divorce Order’s Date.

This does not preclude I(PFD)A Claims.

55
Q

How can a Will avoid Revocation by Divorce or Dissolution?

A

By including a Clause that states the Testator’s Intention to maintain the Will’s Validity.

(FLK2) Wills and Admin (6 decks)

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