Wills: drafting and interpretation

Question 1

What are non-dispositive clauses in a will?

Answer 1

Clauses that don’t dispose of property within a will.

Question 2

What is the purpose of a commencement clause?

Answer 2

To identify the testator, stating their full name, address as well as any other aliases.

Question 3

What is a revocation clause?

Answer 3

A revocation clause can be included to ensure that all previous testamentary documents are revoked so only one valid will exists at any one time.

A will is valid without one but should be included as a matter of good drafting.

Question 4

Are burial and funeral wishes legally binding on PRs?

Answer 4

The instructions are not legally binding on the PRs but will normally be followed where possible.

Question 5

What is a PR appointed by will known as?

Answer 5

A PR appointed by will is referred to as an executor.

A testator is free to choose their executor but it cannot be a minor or someone who lacks mental capacity.

A minimum of 1 executor is required, and a maximum of 4 can apply for the grant of representation.

Question 6

What is an attestation clause?

Answer 6

An attestation clause describes the circumstances in which the will was signed.

It will usually state the will was executed in the presence of two or more witnesses, and confirms the requirements for due execution in S9 Wills Act 1837.

The date may be included but should not appear in both the attestation and commencement clause. The testator does not have to sign but it is common practice.

Question 7

What is a dispositive clause?

Answer 7

Dispositive clauses are clauses in which a testator directs who is to inherit their assets, what each person should receive and on what terms.

Question 8

What are specific gifts?

Answer 8

Specific gifts are of a particular item owned by the deceased at the date of death.

The clause should be drafted precisely and the subject matter must be clear so the gift can be identified, otherwise the clause may fail for uncertainty.

Question 9

If the testator does not own at death the specific gift referred to in the will, what happens?

Answer 9

If the testator does not own at death the item referred to in the will the gift fails to take effect and the beneficiary receives nothing.

Question 10

What is a gift of collections?

Answer 10

Rather than making a gift of a single item, a testator may instead wish to give a collection of items. The clause must be clear and certain as to subject matter.

Question 11

What is a general legacy?

Answer 11

A general legacy is a gift of property which is not distinguished from property of a similar type e.g. “a” rather than “my”

The PRs will have to buy the property if it was not part of the estate at death.

Question 12

What is a demonstrative gift?

Answer 12

This is a type of general legacy which should be paid out of a specified fund.

Such a gift will not fail if there are insufficient assets in the fund-the beneficiary is entitled to receive what is left in the fund.

Question 13

What is a pecuniary gift?

Answer 13

A pecuniary legacy is a gift of money.

It can be specific or general and the clause will often contain the amount of the gift in numbers and words to avoid uncertainty.

Question 14

What is a residuary gift?

Answer 14

This is a gift of all of the testator’s property which has not already been disposed of under the will or any later codicil

It is usually the largest part of the deceased’s estate and can be the most complex to draft.

Question 15

What happens if an asset given by an earlier gift in the will fails?

Answer 15

The subject matter of the gift will usually pass under the residue clause instead.

Question 16

What is the general rule in relation to property as to when the will speaks?

Answer 16

The general rule is that unless a 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 by virtue of S24 Wills Act 1837.

Question 17

What is the general rule in relation to collections as to when the will speaks?

Answer 17

If there is a gift of a collection which is capable of growing, the will speaks from the date of death notwithstanding the use of ‘my’.

Question 18

When is the will determined to speak from when identifying the person who should inherit under a clause?

Answer 18

To identify the person(s) who should inherit under a clause, the will is determined to speak from the date of execution, unless the wording in the will shows a contrary intention.

Question 19

What is the general rule regarding IHT and gifts?

Answer 19

In the absence of any express provision an individual gift in a will is made free of IHT and IHT would be payable out of the residue.

A testator can oust the general rule by stating a gift is to bear its own IHT.

Question 20

What is the general rule regarding charges in a will?

Answer 20

The general rule set out in S35 AEA 1925 is that unless the will shows a contrary intention, the asset charged bears liability for payment.

Question 21

What is the general rule regarding class closing?

Answer 21

The general rule is that a class closes when any one member of the class first becomes entitled in possession.

Question 22

What is the general rule if a beneficiary dies before the testator?

Answer 22

If a beneficiary dies before the testator a gift to them in the will lapses.

Question 23

What does S33 Wills Act 1837 provide for and when does it apply?

Answer 23

In the case of gifts in a will to the testator’s own issue, if there is no express substitution clause, S33 Wills Act 1837 may apply to prevent the gift lapsing. This sections applies where:

-there is a will containing a gift to the testator’s issue (child or other lineal descendant)

-the intended beneficiary dies before the testator leaving descendants of their own who are living at the testator’s death

The effect is to enable the gift to be shared equally between the issue of the deceased beneficiary, provided no contrary intention is expressed in the will.

Question 24

What criteria must be satisfied to incorporate an unexecuted document into a will?

Answer 24

a) The document must exist when the will is executed (or at the time a later codicil is made)

b) The will must refer to the document as being in existence at the time of execution

c) The document must be clearly identified by the will

Question 25

What is a letter of wishes?

Answer 25

They set out how the testator of the estate would like the trustees of the estate to manage their discretionary powers-they are not legally binding and merely serve as guidance.

These letters do not form part of the will or the trust created under it.