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Wills And The IPFDA 1975 Flashcards

1
Q

What requirements must be satisfied for a will to be valid?

A

Capacity, Knowledge, Formal requirements - s.9 Wills Act 1837

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2
Q

What does the case of Banks and Goodfellow require regarding capacity?

A
  1. Understand the nature of the act and its effects; 2. Appreciate the extent of the property of which they are disposing; 3. Understand and appreciate the moral claims to which they ought to give effect; and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will.
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3
Q

Is the testator required to understand every detail of the will?

A

No. They must be able to understand the broad effects of the will.

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4
Q

When must the testator have testamentary capacity?

A

At the time the will is executed.

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5
Q

When can a testator who lacks capacity at the time of execution still make a valid will?

A

Had testamentary capacity at the time they gave instructions for the preparation of the will; and the will was prepared in accordance with those instructions; and at the time of execution the testator understood they were signing a will for which they had previously given instructions.

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6
Q

Will the effects of depression and other mental health conditions be taken into account when assessing capacity?

A

Yes.

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7
Q

What is the golden rule?

A

When taking instructions for a will from a client who is elderly or seriously ill, a medical practitioner should be instructed to make an assessment of the testator’s capacity.

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8
Q

Is the golden rule a legal requirement?

A

No, but it is considered best practice.

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9
Q

Who does the burden of proof lie with for proving capacity?

A

Technically lies with the propounder of the will. However, capacity is presumed if the will on the face of it appears rational and has been duly executed.

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10
Q

What must a person who wishes to challenge the validity of the will on the grounds of lack of capacity provide?

A

Evidence sufficient to raise doubt.

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11
Q

Which should prevail, the Mental Capacity Act or the common law test?

A

Common law test (Banks vs Goodfellow).

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12
Q

What must the testator have to satisfy knowledge and approval?

A

Specific intention to make the particular will they sign.

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13
Q

Is knowledge and approval presumed if the testator has testamentary capacity?

A

Yes.

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14
Q

When is there no presumption of knowledge or approval?

A

The testator is blind or illiterate, the will was signed by someone on behalf of the testator, or there are suspicious circumstances.

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15
Q

Does undue influence apply to particular gifts?

A

Yes.

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16
Q

What is the result when a whole will has been made as a result of undue influence?

A

The will is invalid.

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17
Q

When part of a will has been made as a result of undue influence, when will the remainder be given effect?

A

When the omissions do not upset the whole tenor of what remains, but the court cannot add or substitute words.

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18
Q

What are the key principles regarding undue influence set out in Re Edwards?

A

Undue influence occurs where a testator is coerced into making a will, or including particular terms, against their judgement and contrary to their true intention. The testator does not genuinely exercise choice but has surrendered to pressures they were not able to withstand. Goes beyond persuasion. Whether undue influence has occurred is a question of fact.

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19
Q

What factors are relevant when considering undue influence?

A

The physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will.

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20
Q

What must a valid will comply with under s.9?

A

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator.

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21
Q

Can any mark constitute a signature?

A

Yes - Any ‘mark’ may constitute a ‘signature’ if the testator intends it to be, but it is preferable for a testator to use their normal signature to avoid doubt.

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22
Q

Where should the signature be?

A

At the end of the will.

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23
Q

Is there a maximum number of witnesses for a will?

A

No, two witnesses are the minimum.

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24
Q

Do witnesses need to know a will is being signed or its terms?

A

No.

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25
Who should not act as a witness?
A minor, someone who is blind, drunk or of unsound mind should not act.
26
Is there a legal requirement to include an attestation clause?
No.
27
What presumption will an attestation clause raise?
A presumption that the will was executed in accordance with the requirements of s 9 WA.
28
In the absence of a poorly worded attestation clause, what is required?
Proof of proper execution.
29
Should the attestation clause be amended if the will is executed in special circumstances?
Yes.
30
Can a beneficiary of a will be a witness?
No. If a beneficiary or their spouse is a witness to the will, any gifts made to them will be void.
31
Can a beneficiary still inherit if there are another 2 valid witnesses?
Yes.
32
What is the purpose of the commencement of a will?
To identify the testator (stating their full name and address).
33
Is a will valid without a revocation clause?
Yes, but one should be included as a matter of good drafting.
34
Apart from a revocation clause, how else can a will be revoked?
Codicil, marriage/divorce, destruction of the will, or making effective manuscript amendments.
35
Are burial and funeral wishes legally binding on the personal representatives?
No.
36
Who cannot be an executor?
A minor or someone who lacks mental capacity cannot act.
37
Is there a minimum number of executors needed to be appointed?
Yes - 1.
38
What is the maximum number of executors who can apply for the grant of representation?
4.
39
Who can charge for their time as executors?
Only professional executors and trustees may charge for their time.
40
How do executors and trustees roles differ?
An executor’s primary duty is to administer the estate. A trustee is responsible for the management of any trusts that continue following the estate administration.
41
What is the structure that most wills will follow?
1. Introductory clauses, 2. Appointment of executors and guardians, 3. Dispositive clauses, 4. Administrative provisions, 5. Execution/attestation.
42
Can an executor's appointment be qualified?
Yes, e.g. qualified by time.
43
What is legacy usually referring to?
‘Legacy’ normally refers to a gift of chattels or personalty.
44
What is devise usually referring to?
‘Devise’ is normally used in relation to gifts of real property (land).
45
What happens to a specific gift that the testator no longer owns at death?
The gift will lapse, unless an alternative item or cash equivalent is specified.
46
What is a demonstrative gift?
A type of general legacy which the will directs should be paid out of a specified fund.
47
Will a demonstrative gift fail if there are insufficient assets in the specified fund?
No, the beneficiary is entitled to receive what is left in the fund.
48
If clauses relating to the residuary are not properly drafted, what may be the result?
Partial intestacy.
49
In the event of a failure of a specific, general or pecuniary gift, what will happen to the gift?
Fall into the residue estate.
50
From what date does the will speak?
The will speaks from the date of the testator’s death.
51
What words show a contrary intention, to the will speaking at the time of death?
Words like 'my', 'now', or 'at present' can cause specific gifts to adeem.
52
When is the will deemed to speak when identifying people?
Deemed to speak from the date of execution.
53
What do relieving provisions deal with?
Relieving provisions deal with matters such as who should bear the burden of taxes, charges, expenses, and costs.
54
In the absence of an express provision, where is IHT payable out of?
In the absence of an express provision, IHT is payable out of the residue as a general testamentary expense.
55
In the absence of an express provision, where are expenses and costs of transfer payable out of?
Beneficiaries bear the burden of the cost of delivery of the item of property to them.
56
Where are charges paid out of if there is no express provision in the will?
The asset charged bears liability for payment. The beneficiary will inherit the property subject to the charge.
57
What happens if a clause within a will is unclear or ambiguous?
The courts may rule on how it should be constructed, with the intention of the testator being the overriding principle.
58
What happens if a beneficiary predeceased the testator?
The gift will lapse.
59
Are items that comprise a collection identified at the date of death?
Yes.
60
Who does a gift to children include?
Illegitimate, legitimated, and adopted children. A stepchild is not included unless the will clearly indicates this intention.
61
What is the general rule for class closing?
A class closes when any one member of the class first becomes entitled in possession.
62
If no contingency applies, when does a class close?
The class closes on the date of death, provided there is at least one person who satisfies the definition.
63
What is a vested interest?
A gift vests if it is given outright and absolutely, with no conditions to be met.
64
Can a minor give good receipt of capital?
No, a vested gift to a minor is held on trust until the child attains 18.
65
What is a contingent interest?
A contingent gift is made where a beneficiary must satisfy a condition before inheriting.
66
If there are no express substitution clauses, when can s.33 apply to prevent a gift lapsing?
s.33 Wills Act 1837 may apply to prevent the gift lapsing if the intended beneficiary dies before the testator, leaving issue that are living at the testator’s death.
67
Will s.33 always apply?
Yes, unless excluded by the will.
68
What doctrine applies to charitable gifts?
The cy-pres doctrine applies; if a named charity no longer exists, the gift will go to another charity with similar purposes.
69
What does IPFDA 1975 allow the court to do?
The court can make provision for an applicant if it feels reasonable financial provision has not been made from the deceased's estate.
70
Who is eligible to make a claim under IPFDA?
An applicant must be within the jurisdiction of the IP(F)DA 1975, demonstrate they fall within a recognized category, and make their claim within the prescribed time limit.
71
What jurisdiction does the IPFDA apply in?
It only applies where the deceased died domiciled in England and Wales.
72
What are the recognized categories of applicants under IPFDA?
Spouse/civil partner, former spouse/civil partner who has not remarried, cohabitant for two years, child of the deceased, treated as a child, or maintained by the deceased.
73
When must an application under IPFDA be made?
Within 6 months of the grant of representation.
74
Can the time limit for making a claim under IPFDA be extended?
Yes, the Court has discretion to extend the time limit.
75
What should the court take into account when deciding whether to grant an extension of time to apply under IPFDA?
The court should consider the circumstances surrounding the delay, whether negotiations were commenced, if the estate had been distributed, and if refusal would leave the applicant without recourse.
76
When making a claim in the high court, when is it more appropriate to use the Family Division rather than the Chancery Division?
When an application is made by a spouse, civil partner, or cohabitee without complex issues of interpretation.
77
What are the grounds for making a claim under the IPFDA 1975?
That the deceased's will did not make reasonable financial provision for the applicant, or that intestacy rules fail to make reasonable provision.
78
What orders can the court make under IPFDA 1975?
Periodical payments, lump sum, transfer of property, settlement of property, acquisition of property for transfer, and variations of marriage/civil partnership settlements.
79
What is the surviving spouse standard for reasonable financial provision?
Such financial provision as it would be reasonable for a husband or wife or civil partner to receive, regardless of maintenance needs.
80
What is the maintenance standard for reasonable financial provision?
Such financial provision as it would be reasonable for the applicant to receive for maintenance, considering their living needs.
81
What is the key difference between the surviving spouse standard and the maintenance standard?
The surviving spouse standard does not require consideration of maintenance needs, making it a higher standard.
82
When can the court extend the surviving spouse standard?
When the applicant is a former spouse/civil partner who has not remarried, or a spouse judicially separated, with certain conditions.
83
Under s.3(1) IPFDA, what must the court have regard to?
The applicant’s financial resources and financial needs The financial resources and financial needs of any other applicants The financial resources and financial needs of any beneficiary of the estate Any obligations and responsibilities which the deceased had towards any applicants or beneficiaries The size and nature of the net estate of the deceased Any physical or mental disability of any applicant or beneficiary Any other matter the court considers relevant in the circumstances (including the conduct of the applicant or any other person) When considering a person’s financial resources and needs, the court must take into account any resources and needs they are likely to have in the foreseeable future.
84
What additional considerations does the court have in relation to spouses?
The applicant’s age, duration of marriage/civil partnership, and contributions to the family welfare.
85
What specific guidelines apply to cohabitees?
The age of the applicant, length of cohabitation (at least 2 years), and contributions to the family welfare.
86
What additional considerations does the court have in relation to children of the deceased?
Under s 3(3) where the applicant is a child of the deceased, the court must also consider the manner in which the applicant was (or might expect to be) educated or trained: This section also applies if the applicant was not a child of the deceased, but was treated as such, but the court must also consider: Whether and on what basis the deceased maintained the applicant, for what time they did so and the extent of their contribution. Whether and, if so, to what extent the deceased had assumed responsibility for the applicant’s maintenance. Whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the applicant was not their child. The liability of any other person to maintain the applicant.
87
What does 'maintained by the deceased' mean?
An applicant is treated as maintained by the deceased if the deceased made a substantial contribution towards their reasonable needs.
88
When considering a spouse/civil partner, is the court required to consider relief available on divorce?
Yes, but it is not correct to assume a 50% interest in the estate.
89
What changes can be made to the original estate distribution after a person has died?
Variation, disclaimer, precatory trust, court order under IPFDA, and capital distributions from some will trusts within 2 years of death.
90
What is a variation?
A direction from an original beneficiary to the deceased's PRs to transfer property they are entitled to under a will or intestacy to another person.
91
Is variation possible after inheritance has been accepted?
Yes.
92
Can the original beneficiary determine who receives the varied inheritance?
Yes.
93
What conditions must variations comply with?
Made by the original beneficiary in writing, within two years of death, with an express statement confirming s142 applies, and not for consideration.
94
When is the approval of PRs needed for variations?
If the variation results in additional IHT, the PRs should sign the variation and provide HMRC with a copy.
95
Does CGT apply to cash assets?
No.
96
When are new beneficiaries deemed to acquire their assets from variations?
At their date of death value.
97
Is there an issue of an additional IHT as a result of variation?
No, because no IHT is payable in respect of the deceased's death estate.
98
Are there any restrictions on the number of times a will can be varied?
No, but each asset can only be varied once.
99
What property cannot be varied?
Property where the deceased was a life tenant before death, or gifts with reservation of benefit.
100
For IHT purposes, are gifts from the original beneficiary read back to the date of the deceased's death?
Yes, treated as having been made by the deceased to the new beneficiary.
101
Are the original beneficiaries treated as making a potentially exempt transfer when making a variation?
No, IHT is recalculated as though the deceased left the property to the new beneficiary.
102
What is a disclaimer?
A disclaimer is a refusal to accept property to which a beneficiary is entitled under intestacy or a will.
103
What are the limitations to disclaimers?
A beneficiary can only disclaim before acceptance A beneficiary can only disclaim the whole gift A disclaimer of a beneficiary's rights under a will does not disclaim their rights under any intestacy which may arise as a consequence of disclaiming their testamentary inheritance The inheritance passes as if the gift to the original beneficiary had failed. The original beneficiary cannot control who receives the assets they disclaim.
104
Do disclaimers and variations have the same IHT and CGT implications?
Yes, the original beneficiary is not treated as having made a transfer.
105
When does a precatory trust arise?
When a gift is made with a wish expressed on how the beneficiary should pass on those assets.
106
Are the testator's wishes binding in a precatory trust?
No.
107
How are distributions made under a precatory trust treated for IHT purposes?
IF within 2 years of the testator's death, these are treated for IHT purposes as gifts made by the testator's will and not the original beneficiary. the original beneficiary is not treated as having made a PET of these items, which would otherwise be the case.
108
How are distributions made under a precatory trust treated for CGT purposes?
Redistribution according to the testator's wishes is treated as a disposal by the original beneficiary.

Wills And Estates (8 decks)

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