Wills, Probate and Administration of Estates

Question 1

Typical Structure of a Will (8)

Answer 1

Opening
 This is the last Will and Testament of me [Testator’s name], of [Address] which I make on [Date]

1. Revocation clause
    I revoke all former wills, codicils and testamentary dispositions
2. Appointments
    I appoint [name of executor] of [Address] to be my executor
3. Non-residuary gifts
    I give [name the legacy] to [name the beneficiary]
4. Gifts of residue
    Subject to the payment of my debts, funeral and testamentary expenses and legacies I give all of my estate to [name the beneficiary] OR [class of beneficiaries in equal shares] if they survive me by 28 days but if they do not survive me then to [substitute beneficiary]
5. Survivorship clause
    I give [name the legacy] to [name the beneficiary] if they survive me by 28 days but if they do not survive me to [substitute beneficiary]
6. Administrative provisions
   common administrative provisions to include
    Power to charge
   o “Any of my Trustees who is a professional working in estate administration may charge for their work as if they were acting for a client, even if they are also acting as a Trustee.”

 Extended power to appropriate assets without the consent of legatee

 Power to insure assets

 Power to accept receipts from or on behalf of minors

 Self-dealing: an express clause in the will that may permit self-dealing by the trustees, in particular where executors and trustees are also beneficiaries

7. Attestation clause
    Signed by me [testator’s name]
   in our joint presence and then by us in [his/ hers]

Question 2

Burden of IHT, Costs and Charges

Answer 2

• ‘I give The Old Vicarage to Alison Peters free of mortgage
• I give The Old Vicarage to Alison Peters free of tax.

 The words ‘free of tax’ confirm the general rule that the IHT attributable to The Old Vicarage falls on residue.

Question 3

Contingent Trust of Residue Clause

Answer 3

I give all the rest of my estate not otherwise disposed of by my will to my Trustees upon trust to pay my debts, funeral and testamentary expenses and legacies and to hold the balance (‘my Residuary Estate’) on trust for such of my children as attain the age of 25 years and if more than one, in equal shares absolutely. If any child of mine dies before me or before attaining a vested interest, leaving children who shall attain the age of 25 years, those children shall take the share of the Trust Fund that their parent would have taken under this clause in equal shares absolutely.’

Question 4

Avoiding partial intestacy clause

Answer 4

• It is wiser to omit names and specific shares in the residue, and refer only to any children the testator may have at the date of death.
• Using the phrase ‘for such of my children as survive me and if more than one in equal shares’ will ensure that there will be a partial intestacy only if all children predecease the testator.

Question 5

Language and style

Answer 5

 Write in the first person using clear, simple language

 I appoint, I give, I renounce

 Each section of the will should be numbered. Use letters for sub-sections in a clause