Wills: Drafting and Interpretation Flashcards
Who cannot act as an executor?
Minor
Lacking mental capacity
How many executors can be appointed?
Minimum 1
Maximum 4
Over 4 = power reserved
What does s18A say?
Appointment of a spouse/civil partner as executor will be ineffective if divorced unless stated otherwise
What are qualified executor appointments?
Time
Location
Type of asset
What happens if someone makes a second Will without revocation clause?
Impliedly revokes earlier will to the extent that it is inconsistent/merely repeats
If a Will creates a Trust, how many Trustees should there be?
2
Can a Law Firm partnership act as Executor?
Not a legal entity so no
Can appoint all partners of firm at DOD and limit number/specify preference of who
What businesses can act as an Executor?
LLP
Trust Corporation
what does s29 Trustee Act say?
Professional executors can charge for their time
What happens if a guardian is appointed by one spouse/CP?
Takes effect on the death of the surviving spouse/CP
What happens if you give a specific legacy you dont own at date of death?
The gift adeems
What does s55(1)(x) AEA say personal chattels are?
all tangible movable property except for money or securities for money, assets used at the
intestate’s death solely or mainly for business purposes and assets held at the intestate’s death
solely as an investment
What should be considered when giving a gift of land?
- TP interests (co owner if TiC)
- Tax – RNRB
- Secured charge/mortgage
- Trust – practical? rent? veto sale? who occupying? who maintains?
- Joint ownership where leaving to more than one person
What happens if a demonstrative gift ceases to exist or is inadequate?
he beneficiary is entitled to receive what is left in the fund and to have the balance of the legacy paid as a general legacy.
Where will a trust be imposed for the residue in a Will?
- Life interest in residue
- Discretionary Trust of residue
- More than one person
- Contingent/minor interests
When does the Will speak from for collections?
Date of Death
When does the Will speak from for people?
Date of execution
When does the Will speak from for property?
s24 DOD unless contrary intention
What are class closing rules?
the class closes when the first beneficiary in the class obtains a vested interest.
What is the default rule for expenses?
Specific beneficiaries bear the burden of:
cost of delivery
expenses occurred since DOD preserving/ensuring upkeep
What is the default position for IHT?
individual gifts free of IHT, payable out of residual
What does s35 AEA say about charges?
unless contrary intention, asset charged bears liability (beneficiary inherits subject to charge)
When can extrinsic evidence be used according to s21 Administration of Justice act 1982?
a) Will/any part is meaningless
b) Language used in any part is ambiguous on face
c) Ambiguous in light of surrounding circumstances
What is the commorientes rule in s184 LPA 1925?
Death in uncertain order = oldest died first
What does s4 IHTA 1984 say about survivorship?
Order of death unknown = died simultaneously
What are the class closing rules where there is no contingency?
Closes on DOD as long as one person satisfies
What does s33(1) say about pre-deceased issue?
a) Will contains a devise or bequeath to a child or remoter descendant +
b) Intended B dies before T leaving issue +
c) Issue of intended B are living at T’s death
Then unless contrary intention, take effect as issue living at death
What is the cy-pres doctrine?
Gifts for general charitable purposes can be given to a different charity with a similar purpose where the original gift fails
What documents may be incorporated into a Will other than codicils?
Unexecuted documents
STEP provisions
Letter of wishes
What are the requirements for incorporating an unexecuted document into a will?
- Document exists when will is executed
- Will refers to document as being in existence at time of execution
- Document clearly identified in Will
Is a letter of wishes legally binding?
No
