Wills: Drafting and Interpretation

Question 1

Who cannot act as an executor?

Answer 1

Minor
Lacking mental capacity

Question 2

How many executors can be appointed?

Answer 2

Minimum 1
Maximum 4
Over 4 = power reserved

Question 3

What does s18A say?

Answer 3

Appointment of a spouse/civil partner as executor will be ineffective if divorced unless stated otherwise

Question 4

What are qualified executor appointments?

Answer 4

Time
Location
Type of asset

Question 5

What happens if someone makes a second Will without revocation clause?

Answer 5

Impliedly revokes earlier will to the extent that it is inconsistent/merely repeats

Question 6

If a Will creates a Trust, how many Trustees should there be?

Answer 6

2

Question 7

Can a Law Firm partnership act as Executor?

Answer 7

Not a legal entity so no
Can appoint all partners of firm at DOD and limit number/specify preference of who

Question 8

What businesses can act as an Executor?

Answer 8

LLP
Trust Corporation

Question 9

what does s29 Trustee Act say?

Answer 9

Professional executors can charge for their time

Question 10

What happens if a guardian is appointed by one spouse/CP?

Answer 10

Takes effect on the death of the surviving spouse/CP

Question 11

What happens if you give a specific legacy you dont own at date of death?

Answer 11

The gift adeems

Question 12

What does s55(1)(x) AEA say personal chattels are?

Answer 12

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

Question 13

What should be considered when giving a gift of land?

Answer 13

• 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

Question 14

What happens if a demonstrative gift ceases to exist or is inadequate?

Answer 14

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.

Question 15

Where will a trust be imposed for the residue in a Will?

Answer 15

• Life interest in residue
• Discretionary Trust of residue
• More than one person
• Contingent/minor interests

Question 16

When does the Will speak from for collections?

Answer 16

Date of Death

Question 17

When does the Will speak from for people?

Answer 17

Date of execution

Question 18

When does the Will speak from for property?

Answer 18

s24 DOD unless contrary intention

Question 19

What are class closing rules?

Answer 19

the class closes when the first beneficiary in the class obtains a vested interest.

Question 20

What is the default rule for expenses?

Answer 20

Specific beneficiaries bear the burden of:
cost of delivery
expenses occurred since DOD preserving/ensuring upkeep

Question 21

What is the default position for IHT?

Answer 21

individual gifts free of IHT, payable out of residual

Question 22

What does s35 AEA say about charges?

Answer 22

unless contrary intention, asset charged bears liability (beneficiary inherits subject to charge)

Question 23

When can extrinsic evidence be used according to s21 Administration of Justice act 1982?

Answer 23

a) Will/any part is meaningless
b) Language used in any part is ambiguous on face
c) Ambiguous in light of surrounding circumstances

Question 24

What is the commorientes rule in s184 LPA 1925?

Answer 24

Death in uncertain order = oldest died first

Question 25

What does s4 IHTA 1984 say about survivorship?

Answer 25

Order of death unknown = died simultaneously

Question 26

What are the class closing rules where there is no contingency?

Answer 26

Closes on DOD as long as one person satisfies

Question 27

What does s33(1) say about pre-deceased issue?

Answer 27

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

Question 28

What is the cy-pres doctrine?

Answer 28

Gifts for general charitable purposes can be given to a different charity with a similar purpose where the original gift fails

Question 29

What documents may be incorporated into a Will other than codicils?

Answer 29

Unexecuted documents
STEP provisions
Letter of wishes

Question 30

What are the requirements for incorporating an unexecuted document into a will?

Answer 30

• Document exists when will is executed
• Will refers to document as being in existence at time of execution
• Document clearly identified in Will

Question 31

Is a letter of wishes legally binding?

Answer 31

No