Wills (Drafting & Amendment) Flashcards
What is included in the introductory clause of a will?
The testator’s full name, address, and occupation (optional).
Any aliases or other known names should be listed, especially if assets are held in another name.
What is the purpose of a revocation clause in a will?
To revoke all previous wills, ensuring only the latest will is valid and preventing confusion.
Is a will valid without revocation?
A will is valid without revocation but one should be included to avoid doubt
If the testator has more than one valid will, the later impliedly revokes the earlier but only to the extent that it is inconsistent with or repeats terms of earlier willI
Are burial and funeral wishes legally binding in a will?
No, they are not legally binding but are generally followed by family and executors.
What is the role of an executor in a will?
An executor
* Collects the deceased’s assets
* Pays debts
* Pays dministration costs
* Distributes assets to beneficiaries.
What is the maximum number of executors who can apply for the grant of representation?
Four executors can apply, with others holding ‘reserved power’ to act if vacancies arise.
When does the appointment of a spouse as executor become ineffective?
If the marriage is dissolved or annulled after the will is made, per s.18A Wills Act.
Can you have a qualified excecutor appointment?
Qualified appointments are possible by (i) time (e.g. to take effect for a fixed period); (ii) location of assets (e.g. UK assets); or (iii) type of assets (e.g. business).
If a trust does arise how many trustees should act?
At least two trustees should act (or a trust corporation).
It is common but not necessary for the executors and trustees to be the same person.
What powers do LLPs or Trust Corporations have if they are named as executors?
- LLPs have legal capacity to apply for grant of representation and can be appointed as an executor
- Trust-corporations carry out trustee and PR roles.
A testator with parental responsibilities may appoint a legal guardian for their minor child by will. When will it become effective?
- Appointment by one parent would not take effect until after the death of the surviving parent.
- A guardian is not required to accept their appointment
What are administrative powers in a will?
Powers given to executors to administer the estate and to trustees to manage any ongoing trusts after estate administration.
What are dispositive clauses in a will?
Clauses directing who inherits assets, the type of asset given, and any terms or conditions for the inheritance.
What are specific gifts in a will?
Gifts of a particular item owned at death.
If the item no longer exists, the gift fails, and the beneficiary receives nothing.
What effect does a substitute option have on a specific gift?
If the testator would like the beneficiary to receive ‘something’ even if it is not possible to get the original, an alternative can be included.
For example, “I GIVE to X absolutely my Stradivarius violin, or such other violin that I own at my death…”
What is a ‘collection’ in a will?
A collection is a set of items given to beneficiaries.
- The collection must be clearly identified.
- A collection may be to an individual or to more than one individual to be divided
For example, “I GIVE to my grandchildren… in equal shares all my household furniture to be divided among them as they shall agree….”
Define ‘chattel’ in the context of a will.
- Personal items
- Vehicles
- Pets
- Household items (e.g. furniture)
It excludes money, securities for money, items used mainly for business purposes and items owned solely as an investment.
What happens to property owned as ‘joint tenants’ upon death?
It passes outside the will through survivorship to the co-owner.
It passes automatically to surviving co-owner under law of survivorship
How does property owned as ‘tenants in common’ pass upon death?
Property owned solely by testator or jointly as tenants in common will pass according to will or intestacy
- If testator has no beneficiary in mind to receive the property, and is happy for it to be sold as part of administration, no specific provision in the will is required.
- If a testator wants to give away their interest to a particular beneficiary, then the tenancy would need to be severed
What are general legacies in a will?
Gifts of unspecified property,
e.g., ‘a camera,’ without identifying a particular item.
This does not normally fail because the PRs usually buy the specified property if it wasn’t part of the estate.
What is a demonstrative gift in a will?
A gift of a general legacy paid from a specific fund, with a general legacy covering any shortfall.
“I GIVE to [ ] the sum of £500 to be paid from my Rochdale Building Society Account….”
Provide an example of a pecuniary gift clause.
I GIVE to [beneficiary] the sum of five hundred pounds £500 free of tax and absolutely.
What are residuary gifts in a will?
A gift of all remaining assets after specific gifts and debts are settled, to be distributed according to the will.
The failure of a residuary gift results in a partial intestacy. To reduce the risk, wills should (a) create express substitution clauses; or (b) use an ultimate gift clause where the testator specifies who their estate passes to if all other gifts fail
When does the will ‘speak’ regarding specific property identification?
From the testator’s date of death, unless specified otherwise.
A contrary intention can be shown if words such as ‘my’ ‘now’ or ‘at present’ are used since they make the date of execution the relevant date.
“I GIVE to X my car absolutely”
When does the will speak from?
Note this is a specific gift of property
The date of execution due to the word ‘my’
If the testator no longer owns the car when they die, the gift will adeem and beneficiary receive nothing unless there is an express substitutional gift
If there is a gift of collection which can grow, when does the will speak from?
From date of death even if phrases such as ‘my’ are used unless there is an express clause stating that he intends the collection to be that presently owner at execution.
If a will contains the following, when does the gift speak from?
“My stamp collection” or “My chattels”
Gift of collection meaning items included at the date of death despite the use of the term ‘my’
When does a gift to a class close?
For example “my grandchildren”
A gift to a defined group, like ‘children’ or ‘grandchildren’ closes upon the first member’s entitlement - that is when the first beneficiary in the class obtains a vested interest.
To avoid this, an express clause should clarify how to determine the class.
For example, “my grandchildren at the date of my death who achieve the age of 21” - Beneficiaries are any grandchildren at the date when T dies, who are 21 +.
When does the will speak from for the identification of beneficiaries?
The will speaks from the date of execution unless contrary wording expresses so
What is the tax treatment of individual gifts in the absence of specific provisions?
They are made free of Inheritance Tax (IHT), with IHT paid out of the residue as a testamentary expense.
What costs do beneficiaries bear in absence of specific provisions?
The cost of delivery and preservation expenses since the date of death.
If the tester wants such costs paid from the residuary estate, the gift should be stated to be “free of” expenses and cost.
Who bears the charge and liability on an asset?
U unless the will shows contrary intention, the asset charged bears liability for payment.
The beneficiary inherits property subject to the charge (e.g. a mortgage over a house).
However, a testator can expressly relieve the property of the charge so it comes out of the residue.
