Wills Drafting Flashcards
What is the effect of s24 Wills Act?
The general rule is that unless contrary intention is shown, the will speaks from the date of the testator’s death in respect of identifying the subject matter of a gift
What is ‘contrary intention’?
“My” / “now” / “at present” - this item is identified with property owned at the date of the will (date of execution)
What is the general rule for gifting a collection?
Identified at the date of death
If there is a gift of a collection which is capable of growing = will speaks from date of death, notwithstanding the use of “my”
What is the general rule for identifying people?
People are identified with reference to the date of execution
What are the cost implications of a gift in a will?
A gift is made free of IHT, but subject to the costs of transfer
Who bears the liability for property subject to a charge?
The gift of property subject to a charge bears the liability of that charge
This means the beneficiary will inherit the property subject to the charge(e.g., inherit a property subject to a mortgage)
What is the effect of the use of the word “my” in a specific gift?
It overrides the general rule in s24 and the property is identified at the date of the will
What happens if the testator no longer owns the specific property expressed with contrary intention (“my car”)?
The gift adeems and the beneficiary receives nothing
Unless there is an express substitutional gift
What is the effect of the use of the word “my” for collections?
Notwithstanding the use of the word ‘my’, the collection is construed to mean those items included in the collection at the date of death
This means if the collection has grown from the date of execution to date of death, the beneficiary receives the full collection at date of death
Does the rule in s24 apply to people?
No - the will is deemed to speak from execution
What is the effect of the class closing rules for a gift to a class of beneficiaries?
Without express wording from the testator as to when the beneficiaries will be determined, the class closing rules apply and the class closes when the first beneficiary in the class obtains a vested interest
What is the effect of a lapse of a non-residuary gift?
(where gift to B who has pre-deceased fails and there is no substitution clause)
Asset passes under gift of residue
What is the effect of a lapse of a residue gift?
Risk of giving rise to partial intestacy, unless there is an express substitution clause
What is the effect of s33 WA on the effect of a gift lapsing?
s33 may operate if the gift is left to an issue who pre-deceases but leaves their own issue = substitution for issue only
What gifts does ademption apply to?
Specific legacies - if at the time of death the testator no longer owns the gift under the will
For general or pecuniary legacies, the executor has the power to ‘make up’ the lost/sold asset
How can a gift to a minor be given?
Minors cannot give valid receipt for a gift, so the gift is held on trust by the executors or by the minor’s parents/guardians
What is the position for a gift from a bank account which is closed before the testator’s death?
(E.g., £5,000 from Nationwide Account)
This is a demonstrative gift and may be paid from another source if the original account has been closed
If the gift is for an amount but names the source from which that amount should be taken, the gift may be funded from another source if the named account has been closed.
What happens if there is a general gift in the will which the testator’s assets do not include
E.g., a Film camera and assets do not include a camera
The executors should purchase a Film camera to make the gift to the beneficiary
Can a general gift adeem?
A general gift cannot adeem
If the estate does not include the item in question, the executors should purchase one
What happens if there is a previous will which was not destroyed and not revoked by a revocation clause in the new will?
The new will revokes the old will only if it disposes of the entire estate.
If the old will is not destroyed or explicitly revoked, it remains valid except where the new will overrides it
What is an affidavit and when is it required?
An affidavit is a formal written statement of fact which a person signs under oath
- it may be needed where there is a valid will but there is something about the document which renders its validity or interpretation uncertain
- affidavit provides confirmation about circumstances surrounding drafting or execution
