Wills: Drafting and Interpretation Flashcards
What introductory clauses are included on a standard will?
- Commencement
- Revocation
- Burial/funeral wishes
- Appointment of executors and trustees
- Appointment of guardians
What does a commencement do?
Introductory clause
- Identifies testator (full name [inc other names], address and sometimes occupation)
- Refers to assets owned in another name
- Includes date (or at end of will)
If the testator is known by other names (aliases), which one of their names should be included?/
All of them
What does the revocation clause do?
Introductory clauses
Ensures all previous wills/codicils revoked so only one exists at a time
Valid without (e.g. implied revocation) but included for certainty
Are burial/funeral wishes legally binding on PRs?
Introductory clauses
No
What are the rules on appointing executors?
- Cannot choose minor/lacking capacity
- Must be at least 1 - maximum of 4 (good to appoint 2 in case of death/unwilling to act)
- T should obtain consent in advance
What happens if more than 4 executors are appointed?
Power reserved to those who do not initially apply to apply later if vacancy arises
What happens if surviving spouse is appointed and they divorce?
Unless otherwise stated - appointment of partner becomes ineffective
Whilst scope of executor’s appointment is in most cases unrestricted, how can qualified appointments limit this?
- Time - to take effect only for fixed period/survive T by certain period
- Location of assets - to take effect only for assets from UK
- Type - to take effect only for e.g. business assets
Grant of issue will be similarly limited
What is the effect of ambiguity re appointment?
Void
If a trust does/could arise following testator’s death, how many Ts should act?
E.g. express trust created, there are minor Bs
At least 2 Ts should act
Does the same person have to be appointed as both executor and trustee?
Not necessary but is common
If appointing a law firm partnership, who is actually appointed?
All partners at date of death are appointed
- Number who can act can be limited
- Can express preference but cannot personally appoint (may leave firm)
Can an LLP or trust corporation be appointed executor?
Yes
Can all executors and trustees charge for their time?
Only professional executors
What will professional executors/trustees rely on to charge for their time?
An express charging power as part of appointment clause
Can also rely on s29 but this has restrictions
What does express charging clause/s29 protect professionals from?
Breach of fiduciary duty by making profit from receiving payment for services
What happens if someone is appointed guardian but one parent still survives?
It would not take effect until death of surviving parent
Can a legacy be conditional on appointment of guardian?
Yes e.g. legacy only to be paid if guardian appointed
What is the difference of the executor and trustee role?
And when does each role end?
- Executor - primary duty is to administer estate and will complete task when all remaining assets are distributed to Bs
- Trustee - responsible for management of trusts that continue following administration and role continues as long as trust in existence
How can a trust arise out of a will?
- Will may include express trust
- Trust may arise if executors cannot distribute all estate e.g. B a minor, contingent interests not satisfied
What happens where a will gives a gift to a minor or the gift is contingent?
A trust will be created and legacy held by trustee (likely to be same person as executor) until of age/condition satisfied
NB important to remember that a trust is not only created expressly in will - if a gift is left to a minor a trust will automatically be created as minors cannot give good receipt (alternatively can be given to parents)!
Are the executors/trustees beneficial owners of the assets they manage?
No - must be given power to carry out role (from will, statute or common law)
What happens when a will contains no express administrative powers?
By default only statutory and common laws apply
Same as intestacy
Where a will creates a trust, what is the trust deed?
The will!
Trust deed usually refers to document creating lifetime trust
Should the date be included as part of the attestation clause or at commencement?
Either, but not both
What does a dispositive clause tell us?
Who is to inherit what assets and on what terms
What is the difference between a ‘legacy’ and ‘devise’?
- Legacy refers to a gift of chattels or personality
- Devise refers to gifts of real property
Can generally refer to them as ‘gifts’
Does property/cash have to be given to named Bs directly and absolutely?
No - can be subject to conditions/terms of a trust
What is the traditional order of dispositive clauses?
- Non-monetary gifts
- Gifts of cash
- The gift of ‘everything else’
What is a specific gift?
Gifts of a particular, identifiable item owned by deceased at date of death
May be a collection e.g. household furniture
In what 2 circumstnaces will the specific gift be void?
- Not drafted precisely
- Does not own at death
What can the testator include in their will to account for the event that the original item is replaced/no longer exists at death?
An alternative gift can be included
E.g. “I give to [ ] absolutely my Stradivarius violin or such other violin that I own at my death which I keep in my safe”
If the collection is to be divided at discretion of Bs, what provisions should also be included?
- The time frame for deciding
- How to deal if failure to decide e.g. executors decide
How does a testator prevent chattles from being distributed as part of general residue?
Include specific clause
What if the statutory definition of chattels excludes items that testator wants to gift?
E.g. items owned solely as investment, item used mainly for business
Amend the definition in will to include certain items
What if both specific gifts and gift of chattel clauses try to give away same items?
Specific gift will fall within general definition of chattel
Gift of chattels drafted only to cover items that have not already been given away
As specific gifts appear before gift of chattels in a will
What are the considerations when giving a specific gift of land?
- Property must be identifiable (full address and reg title number)
- Must state what happens if property no longer owned (may be “main residence on the date of my death” instead)
- Joint tenancy must be severed
- Should check whether third party interests affect property
- If being left to more than one person the terms of their joint ownership should be clear
What if the specific gift of land is subject to a charge/mortgage?
Testator needs advice relating to the repayment of any outstanding loan and who should be liable for this
What is a general legacy?
A gift of property which is not distinguished from property of a similar type (“a” rather than “my”) i.e. testator will not own it
Most pecuniary legacies are general in nature
How to spot the difference between a specific and general legacy?
- Specific - ‘my…’, ‘all my…’
- General - ‘a…’
Cf
- ‘My 500 shares in ABC Ltd’ = specific
- ‘500 shares in ABC Ltd’ = general
What is the general rule for property?
Re date from which the will speaks
Unless contrary intention shown, the will speaks from the date of testator’s death
Property = promptly = most recent = death
What is the effect of a contrary intention for property and how can it be demonstrated?
Re date from which the will speaks
Makes the date of execution the relevant date - uses words like “my”, “now” or “at present” when describing gift
I.e. if a will says “my BMW” this means the BMW that they owned at date of execution. If they sold this BMW and bought a new one, then this is a different BMW and will not replace the “my BMW” in the will
What is a contingent gift?
B will have to satisfy a condition before they inherit; once satisfied the interest vests
E.g. survive T by specified time or attain certain age
Most commonly used where gifts made to testator’s issue or in relation to residuary estate
If there is no express substitution clause in a will that contains a gift to testator’s issue, what prevents a gift from lapsing if the issue predeceases the testator?
S33 - enables gift to be shared equally between issue of deceased B provided no contrary intention is expressed in will
Applies where there is a will containing a gift to issue, and intended B dies before testator leaving issue of their own who are living at testator’s death (i.e. a safety net in case of no express substitution clause in a will that contains a gift to testator’s issue which gives effect as if there were on)
What are the 3 criteria that must be satisfied for incorporating an unexecuted document into a will?
- Doc must exist when will is executed/at later time when codicil made (e.g. “this list is to be found in my safe = good, “a list I will write before my death = bad”
- Will must refer to document as being in existence at time of execution
- Document must be clearly identified
