Wills Areas of Difficulty Flashcards
What should a solicitor do if testamentary capacity is in doubt?
The solicitor should obtain consent from the client to approach the client’s medical practitioner for confirmation of their testamentary capacity (golden rule)
Is the client’s permission needed to speak to their doctor to confirm testamentary capacity?
YES - client’s permission needed
What is the effect of proving undue influence on the will?
If undue influence can be proved, the will is invalid
And any previous will which was revoked may be revived
What should a solicitor do if a testator owns assets in more than one name?
The grant of representation must refer to each possible alias and the solicitor should draft the will to include all aliases which are used by the testator
How should (partners) of a law firm be appointed to act as executor for a client?
The solicitor should draft the will to state that two of the partners of the firm or the firm which succeeds to or carries on its practice should be appointed as executors
- state that the partners are appointed and that two of them will act
What can be done if there is a clerical error in a will?
An application for rectification of a will must be made within six months of the grant. The PRs (if they have already distributed) would not be personally liable, but the beneficiary may be able to recover money/property from other beneficiaries if needed
Are personal representatives liable to a beneficiary for distributions made six months or more after the grant?
No, they will not be personally liable to a beneficiary wishing to claim against the estate as a result of the error
Is it possible to make a will under the age of 18?
In most circumstances NO
But there are exceptions in the case of military personnel and married minors (a privileged will). The common law test must still be applied to these minors in the usual way.
Can a letter be incorporated by reference into a will?
If the letter is specifically mentioned in the will and is in existence at the time of its execution, it may be incorporated by reference into the will and then the executors should use the letter when making the distribution
Are a testator’s funeral wishes legally binding?
No, there is not a legal obligation for executors’ to comply with funeral wishes
What is the effect of s15 on the beneficiary acting as a witness?
A beneficiary who witnesses a will may not receive any benefit BUT can act as executor.
The gift passing to the beneficiary fails (either residue; or if a gift of residue may pass under intestacy)
What should be done if a will is revoked by destruction accidentally (without the intention required for valid revocation)?
A copy of the will can be admitted to probate provided that evidence which shows the will was destroyed without intention to revoke can be obtained.
If revocation is accidental, should still be able to apply to grant of probate if there is a copy of the will and an affidavit or statement of truth
What happens if there is uncertainity of subject matter for a gift in a will?
The gift will fail for uncertainty and the gift forms part of the residue.
Certainty of subject matter is a requirement for a valid gift.
In the absence of provisions which give executors discretion (e.g., to select the gift from a collection) - there is no implied power. The gift would fail for uncertainty
Does it need to be the testator themselves who destroys their will?
Not necessarily - destruction with intention to revoke may be carried out at the testator’s direction by a third party.
Does not have to be the testator themselves who destroys it, provided it is destroyed in testator’s presence, by their direction and intention to revoke is clear
What are mirror wills?
Wills which are made in the same terms but which remain separate documents. They do not limit testamentary freedom and the other party can still revoke or amend their will
What happens when a child is adopted and what is the effect for intestacy?
At law, once adopted a child is no longer regarded as a relation of their biological parent. This means they cannot inherit under the intestacy rules if their biological parent dies (they would be issue of their adopted parents)
Where two people die in circumstances where it is not possible to tell who died first, who is deemed to survive?
The younger is deemed to have survived the older
What happens where a will does not dispose of the entire estate?
There is a partial intestacy. The PRs will administer the estate in accordance with the will and the residue will pass under intestacy rules
What happens to the reversionary interest in a trust?
The reversionary interest vests in the reversionary beneficiary on the date of the life tenant’s death.
If the reversionary beneficiary has died before the interests vests, it will lapse and not form part of the deceased beneficiary’s estate
What is the effect of a mutual will on a joint tenancy?
Where parties make mutual wills, this is effectively a contract and this can serve to server a joint tenancy where the parties state they are leaving a particular percentage of the property via will
Does a life policy where proceeds are payable to the estate fall within the succession estate?
Yes - this falls within the succession estate. Insurance policy proceeds (payable to the estate) will be regarded as part of the taxable estate (liable to IHT)
It would not be possible for the trustees of the policy to write it in trust so it fell outside the estate.
What is the position for a policy written in trust
For a third party
It does not form part of the succession estate and will not be liable to IHT
If a couple are separated, is this the same as divorce?
NO - if there is not a divorce, and only separation, the separated spouse is still entitled under intestacy rules
What is the effect of a successful claim in proprietary estoppel and what is the position regarding administration of the estate?
If a claim succeeds, the property (in which the beneficial interest is being sought) will not form part of the deceased’s estate
If a proprietary estoppel claim is successful, the beneficial interest cannot be left to another beneficiary under the deceased’s will. The property passes outside the will, and therefore does not form part of the estate for probate purposes.
Continuing to distribute the estate whilst there is an ongoing claim is risk
What can a personal representative do to protect themselves against claims from any potential unknown beneficiaries?
s27 Trustee Act 1925: put a notice in London Gazette and any local newspaper and give any potential claimant 2 months to make a claim
What is an exempt excepted estate?
The gross value of the estate is above £325,000 but not more than £3m and after the spouse/charity exemptions have been applied falls below £325,000 (NRB).
If one of the additional factors apply (such as making a GROB; life interest trust more than £250l; foreign assets more than £100k; valued of specified transfers more than £250k; claim for RNRB), need to fill out IHT 400 and submit to HMRC, even if no IHT is payable
When must IHT be paid?
The executor must pay IHT before they can apply to probate and collect in the estate’s assets
Cannot take possession or sell the deceased’s assets until the grant
Who is responsible for paying IHT?
The personal representatives pay IHT due on death estate out of the estate assets
What must a gift to a charity state to ensure the pecuniary gift does not fail?
The testator must state the name of the charity and charity number, otherwise it will be a failed pecuniary legacy and the money will be added to the residue
What is the executor and administrators’ statutory power of appropration?
It allows them to deal with assets in the estate that are not specific legacies as they see fit to make up a pecuniary or general legacy.
It is commonly used if a beneficiary requests a certain item in the residuary estate
Can a solicitor act for both parties when drafting their mirror wills?
Yes, they can rely on the substantially common interest exception and comply with the conditions (written consent from both, keep confidential information protected and ensure it is reasonable)
What form is used if an executor wants to renunciate?
PA15 is submitted to the Probate Registry
Within how many days must a death be registered?
Within 5 days of death being confirmed by a medical practitioner. This is the first thing an executor will do
Who can claim under IPDFA?
- The deceased must have died domiciled in England and Wales
- a divorcee can claim, but can no longer claim if they remarry
- must make a claim within 6 months of the grant
Are the contents of a will confidential?
The contents are private until the will is admitted to probate. Only the testator and executors can read the will
What happens to property held as joint tenants in the succession estate?
Property held as joint tenants does not form part of the succession estate and half of its value will pass automatically to the surviving joint tenant
When will the courts find undue influence?
the court should only find undue influence where it is the only more than probable (so, on the balance on probabilities, a greater than 50% chance) explanation for the testator’s will. Note that the burden of proof is on the people disputing the will. In other words, if there are other equally probable factors, undue influence will not be established.
This means there is a high bar
What is the legal update on charging acting as an executor?
In the absence of a charging clause n a will, consent in writing of a co-executor or agreement by beneficiaries –> a solicitor/law firm cannot be paid for the work they do acting as executor
They can be identified for costs/expenses incurred, like travel costs
What is the bar for undue influence when drafting a will?
The bar to prove undue influence is high/ The coercion necessary to establish influence had to be more probable than any possibility. If there are other possible reasons for the testator to have drafted or amended the will, it is unlikely that UI will be made out
What is the general rule for IHT liability for LCT during lifetime?
The general rule is the person in whom asset vests (donee) is liable to pay IHT
- LCT - this is the trustees of the trust and payment is made using the settled assets (i.e., the trust)
Under what circumstances can a third party validly sign on behalf of the testator?
The testator must be both physically and mentally present
- a video call is not physical presence
- under s9 WA - must be signed in testator’s physical presence
