Wills & Probate!!

Question 1

3 key elements of a valid will:

Answer 1

(1) mental capacity
(2) intention to make a will
(3) duly executed

Question 2

If you wanted to contest a will on the grounds that the testator lacked mental capacity, what would you need to prove?

Answer 2

Mental capacity is presumed unless challenged.
The testator must have understood NEW:
(1) Nature: That they were making a will
(2) Extent: The extent of their property
(3) Who: Who a testator would usually give gifts to.
When giving instructions to the will drafter
(even if they had no capacity at the date of execution).

Question 3

What’s an example of a suspicious circumstance for a will?

Answer 3

Where the drafter benefits

Question 4

What happens if you raise that the will has been made under suspicious circumstances?

Answer 4

That specific gift in question will fail unless the beneficiary is able to provide evidence of NEW (nature, extent, who).

Question 5

If you’re a solicitor drafting a will and the testator offers to make you a beneficiary, what should you do?

Answer 5

Refuse to draft until the testator has independent advice.

Question 6

If a will is made as a consequence of force, fear, fraud, or undue influence, what happens to it?

Answer 6

It is not regarded as being made by the testator and is not admitted to probate.

Question 7

Valid execution requires the will to be… (5)

Answer 7

(1) In writing
(2) Signed by the testator
(3) Witnessed by 2 or more witnesses
(4) Signed by the witnesses in the presence of the testator
(5) With an attestation clause or other proof that these requirements were met

Question 8

Does a will need to be directly written by the testator?

Answer 8

No, they can instruct a will drafter to draft the will

Question 9

Does the testator have to sign the will themselves?

Answer 9

No, they can direct someone else to sign in their presence.

Question 10

If a will has a thumb print or unfinished signature midway down the page, could this still count as a valid signature?

Answer 10

Yes.

Question 11

Do the witnesses to the execution of the will need to know the contents of the will?

Answer 11

No

Question 12

Do the witnesses of a will execution need to watch each other sign the will?

Answer 12

No. They both need to be present to watch the testator sign, and the testator needs to be present when each of them sign, but they don’t need to witness each other’s signatures.

Question 13

Do the witnesses need to know that they are witnessing the execution of a will?

Answer 13

No, just an execution of a document.

Question 14

What is a standard attestation clause?

Answer 14

‘Signed in by the testator in the presence of us, then by us in the presence of him/her.’

Question 15

If there is no attestation clause, what will need to be provided to make the will valid?

Answer 15

Proof that the execution requirements were actually met. (witnesses etc)

Question 16

Can a will refer to another document that will become part of the will?

Answer 16

Yes as long as it already exists at the date of the will - it can’t be a future document.

Question 17

How would you go about changing something in a will? Is it enough to write down the changes and staple them to the will?

Answer 17

No, they must be executed in the same way as the main body of the will.

Question 18

When can a will no longer be revoked?

Answer 18

Upon the death of the testator.

Question 19

A testator has completed and executed their will. A few months later they divorce their spouse. What happens to the will?

Answer 19

The will is still valid but the spouse is treated as though they died on the day of the divorce.

Question 20

A testator is single when they create and execute their will, but gets married a couple of years later. What happens to the will?

Answer 20

The entire will is revoked unless it specifically stated that the testator intended to marry that person and that this should not revoke the will.

Question 21

2 wills are found for 1 testator who has recently passed. One is dated 1990, the other is dated 2020. Neither have been officially revoked. What happens?

Answer 21

The newest will automatically revokes any provisions which are inconsistent with the earlier will.

Question 22

You find the testators will ripped, burned, and destroyed. What is the presumption?

Answer 22

You presume that the testator destroyed the will with the intention to revoke unless there is evidence to the contrary.

If it was destroyed with the intention that a new will would be made to replace it but T didn’t get round to it, the old will may still stand (despite destruction).

Question 23

A mutual will has been created but after the death of Person 1, Person 2 tries to revoke or amend their side of the will. What will happen?

Answer 23

When a mutual will is created a constructive trust is placed upon the estate in favour of any beneficiaries harmed.

Question 24

How will “I leave my ring to…” be interpreted in probate?

Answer 24

‘My ring’ is my ring on the date of death.

Question 25

How will “I leave my car to…” be interpreted in probate?

Answer 25

Cars are dealt with differently - it’s seen as the car that you had at the date when you wrote the will.

Question 26

How will “I leave a BMW to…” be interpreted in probate?

Answer 26

Its a general legacy so the BMW has to be provided even if it isn’t already part of the estate.

Question 27

What are the 4 types of legacy?

Answer 27

Specific legacy - if the specific property is not in the estate upon death (or has changed form), the gift fails. E.g. shares in X co which has since merged and become Y co.

General legacy - regardless of what property is in the estate, the gift will be given e.g. ‘a BMW’

Pecuniary legacy - can be ‘specific’ or ‘general’ depending on wording e.g. ‘£10,000’ or ‘£10,000 from my Barclay’s Account’

Residuary legacy - everything that is left after paying funeral and legal expenses, and specific, general, and pecuniary legacies.

Question 28

What happens if a beneficiary dies before the testator?

Answer 28

The gift fails and falls into residue unless it was to T’s issue in which case it can do to grandchild/great grandchild etc…

Question 29

Can you leave a legacy to a witness of the will’s execution?

Answer 29

Yes but you always need 2 witnesses who are not beneficiaries.

Question 30

If you leave a gift to X’s children - does it include illegitimate, adoptive, and step-children?

Answer 30

It includes illegitimate and adoptive only, not step-children.

Question 31

If you leave £10k to be shared amongst the grandchildren upon them reaching age 25, when does the class close?

Answer 31

When the first grandchild turns 25, the class closes. This means all grandchildren who have already been born will share the £10k upon reaching 25, but any unborn grandchildren cannot then be added into the class.

Question 32

What is ‘intestate’?

Answer 32

Intestacy is the process of distributing assets that are not dealt with by a will. This could be because the will isn’t valid, there was no residuary, or there is no will at all.

Question 33

What is the spouse entitled to under the laws of intestate?

Answer 33

If they survive their deceased spouse by 28 days and have no issue, they are entitled to:
(1) all property.

If they survive their deceased spouse by 28 days and have children, they are entitled to:
(1) All tangible moveable property (not inc cash, investment, or business property)
(2) £270k
(3) Half of all remaining property
(4) The children split the rest but…
(5) The matrimonial home can be given to the spouse instead or partially instead of the rest of their interest and they can pay the difference

Question 34

If someone dies unmarried, the property passes to:

Answer 34

(1) The children (or grandchildren etc ‘by root’ if they have died
(2) Parents
(3) Whole blood brothers and sisters (including adopted)
(4) Half blood brothers and sisters
(5) Grandparents
(6) Aunts & uncles
(7) The Crown

Question 35

What does it mean to be a beneficial joint tenant?

Answer 35

Co-owners own the whole rather than an identifiable share of the property (tenants in common). Usually cohabiting couples.

Question 36

What happens to property owned as a beneficial joint tenant after death of one tenant?

Answer 36

The interest as a beneficial joint tenant passes outside of the will. It automatically transfers to the other joint tenant.

Question 37

What happens to property held as beneficial tenants in common or beneficial sole owner?

Answer 37

The % share is either transferred in the will, or through the rules of intestate.

Question 38

How does a life insurance policy, national savings, or trust fund interest pass upon death?

Answer 38

All are contracts that sit outside of a will.

Question 39

Do you execute or administer a will?

Answer 39

Execute

Question 40

Do you execute or administer an intestate estate?

Answer 40

Administer

Question 41

I’ve been named as an executor of my family members will. What are my options?

Answer 41

(1) Accept office by taking a (A) grant of probate or (B) intermedling (e.g. notifiying the bank of death)
(2) Once you have accepted, you have to complete your role in office.
(3) If you renounce, you must file this at the Probate Registry.
(4) final option is to have ‘powers reserved’ so you can apply to get involved in the future.

Question 42

What legal document confirms your right to administer an estate?

Answer 42

Grant of representation

Question 43

What are the 3 main grants of representation?

Answer 43

(1) Grant of probate (valid will appoints executor, grant of probate confirms appointment)

(2) Letters of administration with will annexed (valid will but no executor or executor dead, non-contentious probate rules of preferential order apply, must ‘clear off’).

(3) Letters of administration (no will, order of preference same as intestate, power transferred to PRs where relevant, or alternatively; grant de bonis non)

(4) For minors only: power reserved until 18. (grant can be given to their parents until then).

Question 44

What are the non-contentious probate rules of preferential order in letters of administration with will annexed?

Answer 44

trustee of the residuary estate,
any other residuary beneficiary,
PRs of any residuary beneficiary,
any other beneficiary or creditor of the estate,
PRs of the latter.

Question 45

If a beneficiary is a minor child, how does this affect the administrators/executors required?

Answer 45

Need at least 2 administrators/executors rather than just one.

Question 46

What is the procedure if you want to apply for a grant of representation?

Answer 46

(1) If any IHT is payable, you need to pay that before obtaining the grant. (3 options; ask the bank to release £X of dec’d funds directly to HMRC to pay IHT & for funeral expenses, get a loan from the bank, or sell moveable chattels).

(2) Application bundle: 2 wills (if there is one), death certificate, tax form showing IHT has been paid, probate court fees.

(3) If the will doesn’t include an attestation clause, include evidence of valid execution.

(4) Send any caveats from beneficiaries who think the will might not be valid.

(5) If letters of administration /loawwa then ask the Probate Registry to issue refuasl to anyone with a prior right.

Question 47

As a PR, when should you file an IHT account with HMRC?

Answer 47

Must be done within 12 months unless it is an exception. Should do before 6 months as this is when the interest on tax owed starts accruing.

Question 48

In what circumstances is an IHT account with HMCR not necessary?

Answer 48

• Small estate: Estate worth less than the IHT nil rate band £325k.
• Exempt estate: Estate worth less than £3m but after exemptions still within the IHT nil rate band £325k.
• Non-UK domiciled estate: this is also exempt if UK estate is less than £150k.

Question 49

I am a PR, what are my responsibilities?

Answer 49

(1) Preserve the estate
(2) Pay debts
(3) Distribute assets as set out in will/intestacy
(4) Act in the best interest of the beneficiaries
(5) reasonable care and skill inc specialist knowledge
(6) PR can be liable to the estate for losses
(7) PR is not liable for breach of duty by another PR unless they negligently allowed it

Question 50

What powers does a PR have over real estate property?

Answer 50

power to sell, mortgage, and lease as required.

Question 51

What is the PR power to appropriate?

Answer 51

PR can use an estate asset to satisfy another legacy (provided the beneficiary consents).

Question 52

As a PR, you have £10k cash and a car to give a 14 year old. What should you do?

Answer 52

Appoint a trustee who can give valid receipt for monies and assets.

Question 53

As a PR, could you insure property of an estate?

Answer 53

Yes

Question 54

You’re a PR of a £5m estate. There are many bits and bobs to distribute, what can you do to ease the burden?

Answer 54

Delegate duties to agents. You won’t be liable for breaches by an agent unless you didn’t appoint them responsibly.

Question 55

As a PR, you incur costs whilst distributing an estate. For example, you had to lease a trailer to deliver 3 horses to a grandchild. Where does this money come from?

Answer 55

The PR can use their own money for costs and then ‘indemnify’ themselves (i.e. reimburse) from the estate.

Question 56

As a PR, are you free to invest the estate monies?

Answer 56

Yes, as long as it is suitable and diversified. If it is not suitable and diversified, the PR can be liable.

Question 57

Right to receive income on a will (for a minor)

Answer 57

Where they drop feed money to a minor until a certain age (18/21) when they can have the capital sum instead.

Income can be applied to a minor for maintenance, education, or benefit of the minor.
When they become 18, the income is usually added to the capital.
If there’s a contingency e.g. age 21, the income will be paid to the to beneficiary until the capital is distributed at 21.

Question 58

Can a PR advance funds to a specific beneficiary

Answer 58

Yes. It can be the full (presumed share). If the real share is less than the presumptive share the beneficiary doesn’t have to pay it back.

Question 59

There are 3 PRs for an estate. Who needs to be there for the sale of land or transfer of shares in a company?

Answer 59

All 3 PRs must be there for the transfer.

Question 60

Your client is a PR. How would you advise them to protect themselves from liability?

Answer 60

Starting point: PR is personally liable to all creditors and beneficiaries, even if they aren’t aware of them.

(1) UNKNOWN CLAIMS - London Gazette & other newspapers: to avoid unknown claims, place an advert asking anyone interested to contact the PR in minimum 2 months

(2) KNOWN BUT UNABLE TO LOCATE:
(a) pay the amount due into the court instead and distribute the rest of the estate as usual.
(b) get an indemnity from the present beneficiaries to pay the other if a claim is made.
(c) Benjamin Order - court order saying e.g. distributed to everyone but pretend beneficiary X is dead
(d) insurance against claim.

(3) CATCH ALL
A claim can’t be made 6 months after the grant of representation was made so wait 6 months and then distribute to avoid liability for all claims.

Question 61

In what order should you distribute assets as a PR?

Answer 61

(1) estate creditors
(2) beneficiaries

Question 62

When should a PR sell property that forms a specific legacy under the will?

Answer 62

Only to pay debts when other assets have been exhausted.

Question 63

As a PR of an estate with unsecured creditors, what order should you pay them in?

Answer 63

(1) Any property not distributed by the will
(2) Residue
(3) Pecuniary legacies
(4) proportionally from each gift

Question 64

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Question 65

Initial questions to ask for wills & probate interview exam

Answer 65

Client’s details
Funeral costs
Deceased’s assets, pensions, and liabilities
Lifetime gifts made by the deceased
Family information including details of the deceased’s children
Deceased’s details
Death Certificate
Whether anyone was maintained by the deceased
Whether the co-executor had intermeddled in the estate