Wills + probate Flashcards
Valid will requires the testator to have:
- Capacity at the time the will was made
- Intended to make a will
- Executed the will in accordance with the formalities
Capacity in executing a will
Must be at least 18 and have mental capacity (Person presumed to have mental capacity unless someone challenging the validity of a will proves the testator lacked capacity)
Mental capacity => testator must have understood, at the time of the execution of their will:
- The nature of the act (ie that they were making a will and its effects);
- the extent of their property; and
- The claims to which they ought to give effect
Time of execution (‘material time’) =
- Usually when will was executed/signed
- If eg testators does not have capacity at time of signing but did when giving instructions to will drafter, court will deem to have acted with capacity
Intention to execute a will (general)
Present if testator had:
- General intention to make a will; and
- A specific intention to make the particular will
Intention to execute a will (rebutting presumption)
ie rebutting presumption testator had knowldge and approval
Challenger has burden of showing lack of proper intention
BUT presumption does not apply where:
- Testator is blind/illiterate, or will is signed on testator’s behalf (usual to incl a clause saying will was read to them); or
- There are suspicious circs (eg where will drafter substantially benefits from the will), gift will fail unless evidence of the testator’s knowledge and approval of the gift is offered by the person putting forward the will
Factors to consider:
- Whether will is short and easy to understand
- Whether testator was literate
- Surrounding facts (eg whether testator acts 2 people to witness it)
- Any suspicious circs surrounding the will
Intention to execute a will (gifts to sols)
Should refuse to act when client proposes to make a sig gift unless client seeks independent legal advice
Intention to execute a will (duress)
ie will made as a consequence of force or fear
Admitted to probate only if a court pronounces that it is valid and issues a grant in solemn form
- Executor (or any person interested in the will) takes legal action to have it authenticated (ie ‘propounds’)
- All IPs will be parties to the claim
- If court pronounces will as valid, it will order the issue of a grant of probate
Intention to execute a will (undue influence)
Ie something that overpowers the volition of the testator
Not presumed, but court will intervene if the testator surrendered to intolerable pressure
Court more inclined to find UI when the testator is physically or mentally weak
Formalities to execute a will (general)
Will must be:
- In writing
- Signed by the testator (or some other person in the testator’s presence)
- Signed or acknowledged by the testator in the presence of 2 + witnesses present at the same time; and
- Signed by each witness in the presence of the testator
Formalities to execute a will (role of attestation clauses)
Attestation clauses often incl to confirm the above requirements re valid execution of will
Not incl => proponent of will must offer proof that formalities were followed (often by having one of the witnesses testify)
Special attestation clause needed for blind or illiterate testator (to evidence read to them, they understood and approved contents, and they signed/another signed)
Formalities to execute a will (signature requirements)
Usually actual sig used but can be mark, following prev found to be valid:
- Intials
- Stamped sig
- Mark eg a cross
- Unfinished sig
- Sig in pencil
- Words ‘your loving mother’
Sig may appear anywhere on will (though usually at end)
Another may sign on testator’s behalf
- Provided they signed IN THEIR PRESENCE and at their direction
- May be one of witnesses but need not be
Formalities to execute a will (witness requirements)
No formal capacity requirements but must be capable of understanding the significance of being a witness to a sig
Do not need to see the contents or even know testator is signing a will
Blind person incapable as must be able to witness visible act
Mentally unsound person cannot be a witness, but later loss of mental capacity does not affect validity if competent at time
Illiterate person capable but must know testator is signing a doc
B (or their spouse) should not be a witness
Incorporating external doc into will
Will may identify another docs that becomes part of the will
Doc must exist at date of the will and be referred to in the will as so existing
Future intention to make a doc does NOT suffice
Alteration/amendments of wills
Time made key:
If it can be proved made BEFORE execution => valid (Eg through statements of witnesses to initials of T/witnesses adjacent to alteration, provided will reads naturally after the amendment)
Made after execution => must be made with proper formalities
- Can’t be proved made before => presumed to have been made after execution (unless it is filling in a blank space in a will form)
- Valid if signed and intialled by testator by amendment in presence of 2 witnesses
- Sol start by seeing if they can make out original words by ‘natural means’ (eg using magnifying glass)
- Original words apparent => may be admitted to probate rather than amendment
- Original words not apparent (‘obliterated’) => court will admit the will with a blank space where the words are obliterated
Role of codicils
Ie brief doc that adds to/amends/partially revokes an existing will
Note:
- Must make reference to the will
- Requirements for a valid will also apply
- Clause should be incl in the codicil confirming the unamended part of the will; and
- Codicil may remedy a gift which was void because the B witnessed the will
Revocation of wills (general)
May be revoked at any time by testator provided they have retained testamentary capacity
Can be by:
- Law (ie through marriage or divorce)
- Deliberate act of the testator (ie executing later will/codicil, destruction)
- Dependent relative revocation
Revocation of wills - by law
- By marriage or civil partnership
- Revoked unless it appears from the will that, when it was made, the testator was expecting to marry a partic person and they intended that all or part of the will should not be revoked by that marriage - Divorce, dissolution or nullity (NOT merely separation)
- Will partly revoked (ie Law treats former spouse/civil partner as having died on the date of the divorce)
=> Gifts revoked and will not pass to them, but remainder of will remains valid
- Appointed as executor/trustee => appt will be ineffective
UNLESS contrary intention stated
Revocation of wills - deliberate act of the testator
- Executing a later will/codicil
- BUT will impliedly revoke only to extent that it is inconsistent with/repeats the terms of earlier doc
- For avoidance of doubt, usual for will to contain an express revocation clause - Destruction
- Requires:
a) Act of destruction; AND
- Writing cancelled/revoked/putting a line through it not enough
- Only part of will destroyed => treated as that part only having been revoked (unless sufficiently substantial or vital part destroyed)
- Destruction by someone other than testator => must be done in the presence of testator and at their direction
b) Intention to revoke
- Mental capacity the same as that required for the making of a will
- Will found mutilated at date of death => rebuttably presumed to have been done by testator with intention of revoking it
- Further rebuttable presumption that a last will known to have been in the testator’s possession, but which cannot be found at the date of death, has been destroyed by testator with intention of revoking it
Revocation of wills - dependent relative revocation
Occur when intention to revoke was dependent on future event (eg later execution of new will)
Event did not take place => original will may be valid (even if destroyed) if it can be reconstructed from a copy or draft
Mutual wills
Ie wills made by 2 or more persons, usually with the same clauses and conferring reciprocal benefits, further to an agreement between them to make such wills and not to revoke them without the consent of the other
Contract between the parties that wills are to be irrevocable and will remain unaltered
Agreement creates constructive trust in favour of the Bs
=> if one testator dies and other changes will, a B harmed by the change in will may apply to the court for an order to the recipient of the changed gift to transfer it to the person who would have been the B under the original will
Date from which the will speaks
= date of death
Takes effect as if the will had been executed immediately before death
Unless contrary intention in the will
Can be superseded by use of words ‘now’ or ‘at present’
BUT if gift is of car, contrary intention presumed (ie car owned when will written)
Bs determined as at the date of the will’s execution
Types of gift in a will
Legacy = gift of personalty (personal property) vs Devise = gift of realty (real estate)
- Specific legacy
- Gift of specified part fo the estate that is clearly identified at the time of the will’s execution
- Subject to doctrine of ademption (ie gift fails if testator no longer owns that item at date of death) - General legacy
- Does not identify a partic item
- Doctrine of ademption does not apply
=> if no item in estate, B is entitled to require the executors to purchase such an item if they have sufficient funds - Pecuniary legacy
- Ie gift of cash
- Usually general but can be demonstrative (eg paid from X amount owed to me by Y, or from Z account)
- Account closed at date of date/no longer has sufficient funds to meet legacy => B can look to executors to meet any shortfall from other cash or assets in the estate - Residuary legacy
- Ie everything that is left in the deceased’s estate after above and expenses for administering the estate
Failure of gifts (general)
By:
- Ademption
- Lapse
- Gift to witness (Will fail if B of B’s spouse is a witness (will itself remains valid))
Failure of gifts - ademption
Ie a specific gift will fail if it is no longer part of the testator’s estate/is subject to a binding contract for sale, or no longer meets description in the will
Change in substance of subject matter of a specific gift => will adeem
Change in name/form => will not adeem
Failure of gifts - lapse
Ie B has predeceased testator (BUT common practice to incl a substitutional gift in the will)
- Gift effective => will go to this B and will not lapse
- Not effective/not present => subject matter of gift will fall into the residue
- Residual gift lapses => falls into rules of intestacy
Will construed at date of execution (ie ‘eldest son’ is the one living at date will was made)
Gift to 2+ joint tenants will not lapse unless all the recipients die before the testator (ie ‘to A and B jointly’)
- Vs ‘in equal shares’ = words of severance so possible for individual share to lapse
Often conditional on survival of Bs
- For specified period of time, usually 28 or 30 days, after date of death of testator
- Gift fails if B fails to survive for the specified number of days
Simultaneous death
- Ie where impossible to determine who died first
- Law assumes young person survives the elder (law of commorientes)
Gift to deceased issue
- Ie testator’s child (/grandchildren) who die before the testator and leave living issue => living issue will receive the gift
- Incl children who are conceived but unborn
- Unless other intention will take effect ‘per stirpes’ (ie issue of deceased person will split the deceased person’s share) and if more than one in equal shares
- BUT does not apply to other Bs, ONLY issue
Gifts to children - class gifts
(incl legitimate, illegitimate, and adopted children, but not stepchildren)
Class gifts
= gift of property to be divided among Bs who fulfil a general description
- Problem as number of Bs in this class may not be known definitely until many years later (eg X amount to children of Y, cannot be known until Y also dies)
Class closing rules
- where gifts are contingent on something
- Close when any member of class satisfies the condition (eg reaches 25), so that the interest is now vested
- Class closes => no new members can be added to class, but anyone who is alive and within the class will share in the gift if they eventually satisfy the condtion
Intestacy - definition
= statutory method of distributing assets that are not disposed of by will
Apply when:
1. Deceased died with no will; or
2. Deceased’s will does not dispose of all of their property (partial intestacy) because the gift of all/part of residue fails
What happens if someone dies intestate - general
PRs hold their estate on trust with power to sell
Must pay funeral, testamentary, and admin expenses, debts and other liabilities from cash and the proceeds of sale of assets
Residuary estate (ie what is left after above) then shared among those entitled according ot the statutory rulesO
Order of intestacy
- Spouse (with no issue) = whole estate
- must survive the deceased by at least 28 days - Spouse + issue
- spouse takes:
a)Personal chattels (other than money and other assets used for business purposes/held for investment purposes) absolutely
b) £322k; and
c) One half of the residue absolutely
- D’s issue take other half of residue absolutely
- BUT spouse can require PRs to give the spouse the couple’s matrimonial home in partial or total satisfaction of their interest (home worth more than their share => have to pay over the difference)
No spouse =>
- D’s children
- Parents (equally if both alive)
- Brothers and sisters of the whole blood on stat trusts
- Brothers and sisters if the half blood (on stat trusts)
- Grandparents (equally if more than one)
- Uncles and aunts of the whole blood on stat trust
- Uncles and aunts of the half blood on stat trusts
- The crown as ‘bona vacantia’
Rules re intestacy order of entitlement
Earlier classes take to the exclusion of later classes
Class members take equally (if reach 18 or marry before that age)
Adopted children = taken as children of their adopted parents (and not their natural parents)
Statutory trusts - intestacy order
Ie for all classes (other than parents and grandparents), a class member’s issue takes their parents share ‘per stirpes’ if the class member has predeceased (provided the issue attain 18 or marry earlier)
Potential Bs living at intestate’s death but subsequently die before attaining a vested interest
- => their issue take their deceased parent’s share on stat trusts
- Potential B dies without issues => estate administrated as if that B had never existed
Property passing outside the will/intestacy
- Property owned as beneficial JTs
- Passes under survivorship
- Does not apply for TiCs – share passes via the will/intestacy rules
- may be subject to IHT - Life assurance policies
- Held on trust for, or assigned to, Bs
- Or T may express policy to be for spouse and/or children
=> policy belongs to Bs and is payable directly to them (or trustees) on proof of death
- Proceeds will not form part of D’s estate for inheritance tax purposes - Pension scheme death benefits
- Nominated property
- Ie in friendly societies, national savings bank, and national savings certificates directlto chosen Bs by way of statutory nomination in writing - Life interests in trust property
- Will pass according to the terms of the trust
- May be subject to inheritance tax - Gifts where donor has received a benefit
- Inheritance tax concept
- Ie D has given something away but retained some benefit in the gifted property (asset does not belong to D for succession purposes)
Personal representatives - appointment
Executors (will) vs administrators (intestate)
Executor appointed by a will or codicial to administer the estate according to the will/law
Express provision should be incl in the will appointing named executor, or more than one
- Appoints only 1 => will should appoint a substitute
Personal representatives - persons who may be executors
Anyone (except minor/person who lacks mental capacity who will not be granted probate)
Spouses often appointed
- BUT if marriage is dissolved/annulled => appt will usually be defective (but contrary intention can be incl in the will)
Personal representatives - renunciation
Free to renounce their rights to a grant of probate PROVIDED THEY HAVE NOT ACCEPTED OFFICE
Accepts office (+ loses right to renounce) by (1) taking a grant of probate or (2) ‘intermeddling’ in the estate (ie doing something which shows an intention to accept office)
Formalities
- Renunciation must be in writing, signed by executor, and contain a statement that the person has not intermeddled
- Must be signed by a disinterested witness
Renunciation is all or nothing
Must be filed at probate registry (usually by someone else who is applying for a grant of probate)
Once renounced, cannot be reclaimed (unless court allows them to do so)
Does not affect trustee position => would have to also disclaim trusteeship if they wanted to not act as such
Personal representatives - ‘power reserved’
Instead of renouncing
Means they will not be involved for now, but if circs change (eg another executor falls ill/dies) they can apply for a grant of probate at a later stage
No automatic substitution
Grants of representation - definition
= court document authorising the deceased’s PRs to deal with the estate and to transfer assets to Bs
Grants of representation - where dealt
Courts with jurisdiction =
- Non-contentious => conducted in family division of high court (either Principal Registry in LDN or in more local district probate registries)
- Contentious => chancery division of HC (or CC if estate below £350k) is involved
Grants of representation - non-contentious probate rules (NCPR)- accessing funds pre-grant
- Amounts up to £5k held in national savings bank accounts, national savings certs, premium savings bonds, or building societies => may poss obtain payment by producing just death certificate (at DISCRETION of institute concerned)
- Payment can be made to the person appearing to be entitled to the grant or to be beneficially entitled to the relevant asset
- Chattels/other assets can normally be sold without the PRS having to prove they are entitled to sell such items (just need production of death certificate)
Types of grant - grant of probate
Ie when deceased person leaves a valid will
Can only be made to executors (usually expressly appointed by the will)
One executor is sufficient, cannot be more than 4 (though different parts of the estate can have different executors)
Notice of app for a grant of probate is given to any executor to whom power is being reserved
Effect =
1. Confirms executors authority to deal with the estate
2. Grant will usually need to be produced as evidence of the executor’s authority to act (eg to be able to legally sell property, access bank account, sell shares etc)
Types of grant - letters of administration with will annexed
Ie where will but problem with appointment of the executors
NCPR set out prescribed order for who may apply:
1. Trustee of residuary estate
2. Any other residuary B (vested interests preferred to contingent ones)
3. PRs of anyone at (2), other than a life tenant of the residue
4. Any other B or a creditor
5. PRs of anyone in (4) other than a life tenant
Persons of equal rank => court prefers interest of vested rather than contingent B
Anyone entitled to apply for a grant of probate can renounce - Right NOT lost by intermeddling in the estate
A person applying for letters must CLEAR OFF anyone else having a higher entitlement by confirming in theri application that such persons have renounced
If a minor child is a B, at least 2 administrators must be appointed
