Wills & Estates

Question 1

Who do PR’s owe a fiduciary responsibility to?

Answer 1

Estate beneficiaries and creditors

Question 2

Are PRs liable for breach?

Answer 2

Yes, PR’s are personally liable for breach of duty. However, the court may relieve them of liability where they have acted honestly and reasonably and ought fairly to be excused.

Question 3

You are advising a creditor of an estate who is concerned they will not receive money they are owed.

Assuming there are sufficient funds available to meet all debts and legacies but the creditor is not paid, which of the following is correct?

Answer 3

The creditor may bring a devastavit claim against the PRs on the grounds of maladministration.

Question 4

The PRs of an estate are due to distribute assets to the deceased’s children. They have been in contact with the children of the deceased’s marriage but are concerned that the testator could have fathered other children who the PRs and immediate family are unaware of.

Which of the following would help protect the PRs from personal liability should any additional children approach the PRs for a share of the estate after it has been distributed?

Answer 4

Compliance with the s.27 Trustee Act 1925 notice procedure.

Question 5

You are advising a lay executor about their duties. The deceased left a will that includes an express clause stating “no executor shall be personally liable for any action or inaction taken in the course of the administration”.

Which of the following is correct?

Answer 5

Despite the express clause in the will the executor would remain liable for fraud.

Question 6

Assets that do not need a grant

Answer 6

Assets with can be distributed under AEA (Small payments) 1965 ( National Savings (bank accounts. Saving certificates / premium bonds)
Friendly Society and Industrial and Provident Society Deposit Accounts
Arrears of salary and wages
Pensions where deceased was a member of police, fire authority, air force or army.
Building society accounts) /
Personal household possessions /
Cash

Question 7

Assets that pass outside the succession estate?

Answer 7

Property owned as joint tenants (commonly land and bank accounts), Life policies written in trust, discretionary pension lump sums nominated for a third party, Other nominated assets,
Donationes Mortis Causa (DMC)
Assets held in a trust in which the deceased had an interest

Question 8

What is the test for testamentary capacity?

Answer 8

Common law test - Banks v Goodfellow: The testator must:
1. Understand the nature of the act and its effects
2. Appreciate the extent of the property of which they are disposing
3. Understand and appreciate the moral claims to which they ought to give effect.
4. They must have this testamentary capacity at the time of the execution of the will.

Note that this rule takes priority over statute.

Question 9

What is the exception to the rule that the testator must have testamentary capacity at the time the will is executed?

Answer 9

Common law exception - Parker v Felgate: a testator can still make a valid will when lacking testamentary capacity provided they:
1. Had testamentary capacity at the time they gave instructions for the preparation of the will.
2. The will was prepared in accordance with those instructions
3. And at the time of execution the testator understood they were signing a will for which they had previously given instructions.

Question 10

What is the golden rule when dealing with fluctuating testamentary capacity?

Answer 10

That a medical practitioner maker an assessment of the testator’s capacity and a contemporaneous record so that if the will is later disputed, evidence can easily be brought forward.

Question 11

When is testamentary capacity presumed?

Answer 11

When, on the face of it, the will appears rational and has been duly executed.

Question 12

Knowledge and Approval is usually presumed in a will, but this presumption does not exist if….?

Answer 12

• The testator is blind or illiterate
• The will was signed by someone on behalf of the testator
• There are suspicious circumstances e.g. the will was prepared by someone who receives significant benefit from it.

Question 13

What are the formal requirements for a valid will according to s9 WA?

Answer 13

1. That the will is in writing, and signed by the testator, or by some other person in his presence and by his direction.
2. It appears the testator intended by his signature to give effect to the will
3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time and: each witness either attests and signs the will or acknowledge his signature (in front of the testator).

Question 14

What does s 15 WA provide (with regards to beneficiaries and the will signing)?

Answer 14

Any gifts to an attesting witness or their spouse is void. The will remains valid but a solicitor may be negligent if they do not provide advice on the effect of s 15 WA.

Question 15

What are the requirements of a valid codicil?

Answer 15

The same as for a valid will.
It needs to be signed and witnessed in the same way as a will is witnessed.

There is no limit on how many codicils can be added to a will.

Question 16

What is the difference between ademption and abatement?

Answer 16

Ademption is what happens when someone makes a will and leaves someone a particular gift, and that gift is no longer around when the will maker passes away.

Abatement is what happens when certain parts of an estate have to be sold in order to pay debts. This can happen where an estate has a large debt owing to the CRA or the deceased person has a judgment against them. There is a specific order for what gets sold in order to pay debts.

Question 17

Can a former spouse be appointed as executor if the testator has divorced that spouse?

Answer 17

The appointment of a former spouse as executor, will fail in the absence of any contrary intention in the testator’s will.

Question 18

How can PR’s protect themselves from liability to claimants for any unpaid debts or liabilities - of whom they are unaware?

Answer 18

PR’s are protected under s 27 if they give notice of their intent to distribute the estate and require anyone with a potential interest to send them a particulars of claim within a period of at least 2 months from the date of the notice.