Wills Drafting: Non-Dispositive Clauses Flashcards
What is the main purpose of the revocation clause in a will?
A) To revoke all previous wills and testamentary dispositions
B) To ensure executors have authority to act
C) To confirm that the testator had capacity when signing the will
D) To provide instructions for funeral arrangements
A) To revoke all previous wills and testamentary dispositions
Explanation: The revocation clause cancels all previous wills and testamentary dispositions, ensuring only one valid will exists at any time. Without this clause, an earlier will may still be valid, creating ambiguity.
What is the maximum number of executors who can apply for a grant of representation at the same time?
A) Two
B) No Maximum
C) Six
D) Four
D) Four
Explanation: While any number of executors can be appointed in a will, only four can apply for a grant of representation at the same time. If more than four are named, power is reserved to the additional executors in case of a vacancy.
Under s.15 Wills Act 1837, what happens if a beneficiary acts as a witness to a will?
A) The entire will is invalid
B) The beneficiary can still inherit, but only with court approval
C) The beneficiary must step down as executor
D) The beneficiary loses their entitlement under the will
D) The beneficiary loses their entitlement under the will
Explanation: If a beneficiary or their spouse/civil partner acts as a witness, the will itself remains valid, but the gift to the beneficiary is void under s.15 Wills Act 1837.
A testator’s will appoints his spouse and a professional trust corporation as executors. What is correct regarding this appointment?
A) The appointment of the spouse remains valid even if they divorce the testator
B) The trust corporation appointment is void because only individuals can act as executors
C) The trust corporation can act alone as an executor
D) The spouse can charge a fee for their services under s.29 Trustee Act 2000
C) The trust corporation can act alone as an executor
Explanation: A trust corporation has legal personality and can act as the sole executor. However, a spouse’s appointment is revoked upon divorce (s.18A Wills Act 1837). Only professional executors can charge fees under s.29 Trustee Act 2000.
A will states: “I appoint my spouse and any partner at the time of my death at Smith & Co Solicitors as my executors.” What issue might arise?
A) Only one executor can act, making the spouse’s appointment void
B) The spouse’s appointment is invalid unless they are also a solicitor
C) The appointment of the law firm is invalid, as partnerships have no legal identity
D) This appointment is valid without restriction
C) The appointment of the law firm is invalid, as partnerships have no legal identity
Explanation: A partnership does not have a separate legal identity, so all partners at the time of death must be appointed. To avoid uncertainty, the will should specify that a limited number of partners will act.
A testator leaves his estate to his two children and appoints his brother as executor. The will states: “If my brother is unable to act, I appoint my sister to act.” His brother is bankrupt at the time of death. Who can act as executor?
A) The brother can still act because a bankruptcy does not disqualify an executor
B) The court must appoint a new executor
C) The sister automatically becomes executor
D) The estate will be distributed under intestacy rules
A) The brother can still act because a bankruptcy does not disqualify an executor
Explanation: A bankrupt person can still act as an executor, but they may not be able to handle financial transactions on behalf of the estate. If the court finds the bankruptcy affects the administration, they may appoint a substitute.
A testator is blind and has a will prepared by a solicitor. The will was read aloud before the testator signed it in the presence of two witnesses. What additional precaution should be taken?
A) The will must be signed twice to confirm understanding
B) The solicitor should act as executor to ensure the will is enforced
C) The testator must appoint a guardian to oversee the estate
D) The attestation clause should confirm the will was read aloud and approved
D) The attestation clause should confirm the will was read aloud and approved
Explanation: When a testator is blind, the attestation clause should confirm the will was read aloud and understood. This reduces challenges regarding knowledge and approval.
A will is drafted for an elderly client with suspected cognitive decline. To reduce the risk of future challenges, what is the best course of action?
A) Ensure two family members witness the will to confirm validity
B) Record a video of the testator signing the will
C) Arrange for a medical practitioner to assess capacity and document their findings
D) Ensure the testator signs multiple copies of the will
C) Arrange for a medical practitioner to assess capacity and document their findings
Explanation: The golden rule (Kenward v Adams) states that when drafting a will for an elderly or seriously ill client, a medical assessment should be obtained to confirm testamentary capacity. This reduces the risk of later challenges.
A testator’s will states: “I APPOINT my sister and my wife as my executors.” The testator and his wife later divorce. Who can apply for probate?
A) Both executors, as the will remains valid despite divorce
B) The testator’s sister only, as the wife’s appointment is revoked
C) The wife only, as divorce does not revoke executor appointments
D) The will is invalid due to a missing substitution clause
B) The testator’s sister only, as the wife’s appointment is revoked
Explanation: Under s.18A Wills Act 1837, divorce revokes the appointment of an ex-spouse as executor unless the will states otherwise. The testator’s sister remains validly appointed and can act alone.
A testator appoints his solicitor’s law firm as his executor, using the words: “I appoint my solicitor’s firm to act as executor.” What is the issue with this clause?
A) A law firm does not have legal personality, so the appointment fails
B) The entire will is invalid due to uncertainty
C) The clause will be upheld only if the solicitor personally agrees to act
D) The firm must confirm the appointment with the probate registry before the testator dies
A) A law firm does not have legal personality, so the appointment fails
Explanation: A law firm partnership does not have a separate legal identity, meaning all partners at the testator’s death would be appointed. To avoid issues, it is better to appoint a specific solicitor or an LLP/trust corporation.
A testator executes a will but signs only his initials rather than his full signature. What is the legal effect?
A) The will is valid if the testator intended the initials to act as their signature
B) The will is invalid because initials are not a proper signature
C) The will is valid only if witnessed by a solicitor
D) The testator must re-execute the will with their full signature for it to be valid
A) The will is valid if the testator intended the initials to act as their signature
Explanation: Under s.9 Wills Act 1837, any mark may be sufficient if intended to act as a signature. Courts have accepted initials, thumbprints, and even an ‘X’ as valid signatures.
A testator executes a will in the presence of two witnesses but forgets to sign it. What is the legal consequence?
A) The will is still valid as long as the witnesses sign it
B) The will is invalid due to failure to comply with s.9 Wills Act 1837
C) The will remains valid if one of the witnesses adds the testator’s signature later
D) The will remains valid if the testator acknowledges the document later
B) The will is invalid due to failure to comply with s.9 Wills Act 1837
Explanation: s.9 Wills Act 1837 requires the testator to sign the will in the presence of two witnesses. If the testator does not sign, the will is invalid, even if the witnesses do.
