Wills (Wills and IPFDA)

Question 1

What is the effect of a valid will?

Answer 1

The assets upon death capable of passing by will (the distribution or succession estate) are distributed in accordance with the terms of the will.

No specific form or wording is required. The testator can leave their property to whomever they choose under testamentary freedom.

Question 2

What are the legal requirments for a valid will?

Answer 2

• Testor must be 18 or over
• Satisfy testamentary capacity requirments
• Satisfy knowledge and approval requirments
• Satisfy formality requriments per s.9 WA

Question 3

What happens if there is no will or if the will fails to dispose of all assets?

Answer 3

The intestacy rules will determine who inherits such assets.

Question 4

What must a testator understand about the act of making a will?

Answer 4

A testator must understand that they are signing a document that takes effect on death and disposes of their property. They should grasp the broad effect but are not required to understand every legal detail.

Question 5

What does a testator need to appreciate regarding their property?

Answer 5

• Have a general recollection of what they own
• Appreciate the approximate value of their assets and estate.
• They are not required to recall every item or know precise values

Emphasis is on a general understanding.

Question 6

What moral claims must a testator appreciate?

Answer 6

• A testator must understand and appreciate the moral claims to which they ought to give effect, such as anyone to whom they owe a moral responsibility.
• But there is no requirement for the tester to leave those people anything.

Question 7

If a testator is suffering from insane delusions, what happens to their testamentary capacity?

Answer 7

If the delusions affect judgment, they may lack testamentary capacity.

However, if the delusions are unconnected and have no effect on the will, testamentary capacity may still exist.

Question 8

When must a testator have capacity for the will to be valid?

Answer 8

There must be capacity at the time the will is executed.

However, an exception exists where a testator who lacks capacity at the time of execution can still make a valid will if they had capacity when giving instructions for preparing the will.

Question 9

Can a testator with fluctuating capacity make a valid will?

Answer 9

Yes, a testator’s capacity can fluctuate over time, and they may have intermittent capacity, such as a dementia patient with lucid days.

Question 10

What is the golden rule for elderly or seriously ill clients?

Answer 10

When taking instructions for a will from such clients, a medical practitioner should assess their capacity and make a record. This is best practice but not a legal obligation.

Question 11

What is the presumption of capacity?

Answer 11

The burden lies with the person seeking to admit the will to probate to prove capacity. However, capacity is presumed if the will appears rational and duly executed.

Question 12

What does a statutory will allow for a person who lacks capacity?

Answer 12

The court can authorize the execution of a will on behalf of an adult who lacks capacity if there are grounds to diverge from the existing testamentary position in the person’s best interest.

s.18(1) MCA 200

Question 13

What must a testator have regarding knowledge and approval?

Answer 13

A testator must have a general intention to make a testamentary document and a specific intention to make the particular will they sign.

Question 14

When is the presumption of knowledge aremoved?

Answer 14

There is no presumption, and the burden shifts to those seeing to enforce the will, if…

• The tester is blind or illiterate
• The will was signed by someone on behalf of the testator
• There are suspicious circumstances (e.g. will made by someone who receives large benefit)

Question 15

What happens if there is no presumption of knowledge and approval?

Answer 15

An affidavit of knowledge and approval would be needed when submitting to probate if the attestation clause doesn’t address the situation.

Question 16

What invalidates a will even with knowledge and approval?

Answer 16

If the will is a result of undue influence or duress, it will not be valid.

• Where the whole will was made under such circumstances, the whole will is invalid (void).
• Where part of the will was made due to undue influence, but the remainder was not, the remainder may be given effect to so long as doing so does not “upset the whole tenor of what remains.”

Question 17

What does Section 9 of the Wills Act 1837 require for the will to be valid?

Answer 17

The will must be

• In writing
• Signed by the testator, or signed by another person in their presence and by their direction.
• The signature is made or acknowledged by the testator in the presence of two or more witnesses, present at the same time
• Each witness either (a) **attests **and signs the will; or (b) acknowledges his signature, in the presence of the testator (but not necessarily of any other witness)

Question 18

What is the formality requirment for witnesses?

Answer 18

• Two is minimum. There is no maximum witnesses.
  *
• Witnesses need to be physically and mentally present but do not need to know a will is being signed or the terms.
• A minor, someone blind, drunk or unsound is not acceptable.
• Full name, address, occupation of each should be noted.

Question 19

How should witnesses sign the will?

Answer 19

• Both witnesses must sign the will in front of the testator
• It is not necessary for each witness to sign in front of each other
• They can attest (see the testator sign) or acknowledge (e.g. be out of the room, miss the signing, but execute validly by stating that it was the testor who had signed

Question 20

What happens if a witness is a beneficiary of the will?

Answer 20

• Under s.15 of the Wills Act, any gifts to an attesting witness or their spouses are void, but the will remains valid apart from those gifts.
• If there are at least two other witnesses not caught by s.15, the will is executed properly without the beneficiary or their spouse witnessing the will and the gifts are valid.

Question 21

What are introductory clauses in a will?

Answer 21

They identify the testator with a full name and address, and sometimes occupation, including any known aliases.

Question 22

What should a revocation clause in a will ensure?

Answer 22

• It should ensure that all previous wills are revoked.
• Note, a will is valid without revocation but one should be included to avoid doubt

Question 23

What are burial and funeral wishes in a will?

Answer 23

These clauses are often inserted at the start and, while not legally binding, are usually followed.

Question 24

What is the role of an executor?

Answer 24

• Collects the deceased’s assets
• Administers the estate
• Pays debts, administration costs
• Distributes assets to beneficiaries.

Question 25

What is the minimum number of executors that can apply for the grant of representation?

Answer 25

• A minimum of one executor
• No maximum for the will
• However, a maximum of four can apply for grant.
• If more than 4 are named, then power is ‘reserved’ for those who do not apply initially to apply later if vacancy arises.

Question 26

When can a guardian be appointed?

Answer 26

• A testator with parental responsibilities may appoint a legal guardian for their minor child by will
• Appointment by one parent would not take effect until after the death of the surviving parent.
• A guardian is not required to accept their appointment

Question 27

How many trustees should be appointed if a trust arsies?

Answer 27

**At least two.
**
Common but not necessary for the executors to be the trustees

Question 28

What is a specific gift in a will?

Answer 28

A specific gift is of a particular item owned at the date of death.

Question 29

What happens if a specific gift fails?

Answer 29

If the testator does not own the item at death, the gift adeems (fails) and the beneficiary receives nothing.

A substitute option can be added. For example “I GIVE to X absolutely my Stradivarius violin, or such other violin that I own at my death…”

Question 30

Can a testator leave a collection?

Answer 30

• Yes - the collection must be clearly identified.
• A collection may be to an individual or to more than one individual to be divided. Where a devision is required, the will should specify how devision takes place and the time frame to agree

Question 31

What does ‘chattel’ include and exclude?

Answer 31

• Includes vehicles, modes of transport and pets.
• Excludes money, securities for money, **items used mainly for business **purposes and items owned solely as an investment.

Question 32

What are general legacies?

Answer 32

• General legacies give property that is not distinguished from a similar type of property (e.g. a camera, rather than ‘my canon camera’)
• They do not normally fail because the PRs usually buy the specified property if it wasn’t part of the estate.

Question 33

What is a residuary gift?

Answer 33

A residuary gift is of all the property that has not already been disposed of under the will or later codicil.

Question 34

What if there isn’t a direction for debts and legacies to be paid out of the residue?

Answer 34

Without such direction, a statutory order re payment of debts and legacies is followed.

Question 35

When does the will speak from when identifying subject matters?

Answer 35

Unless contrary intention is shown, the will speaks from the date of testator death when identifying subject

Question 36

How is a contrary intention shown so that a will speaks from the date of execution?

Answer 36

If words such as ‘my’ ‘now’ or ‘at present’ are used since they make the date of execution the relevant date.

For example “I GIVE to X my car absolutely” speaks from execution.

Note the collection exception for ‘my’

Question 37

If there is a gift of collection which gros over time, when does the gift speak from?

Answer 37

It speaks from date of death *even if *phrases such as ‘my’ are used

For example, a gift of “my stamp collection” or “my chattels” speaks from the date of death *(different to a specific gift of property. *

Question 38

When does a will speak from when identifying beneficiaries?

Answer 38

The **date of execution **unless contrary wording expresses so.

Gifts should state when categories are determined, otherwise the ‘closing rules’ apply and the class closes when the first beneficiary in the class obtains a vested interest.

Question 39

If no provision is made, when does a class close?

Answer 39

Without express wording, in default, the class closes **when the first beneficiary in the class obtains a vested interest. **

For example, a gift to ‘my grandchildren’ would close (and be limited to all the grandchildren alive) when the first one becomes 18.

Question 40

Are gifts (be default) made free of IHT?

Answer 40

Yes, in the absence of express provision, an individual gift in a will is made free of IHT.** The IHT is payable out of the residue** as a testamentary expense.

Question 41

Who bears the burden of the cost of delivery and expenses incurred for preserving a gift since the date of death?

Answer 41

In absence of any express provision, specific beneficiaries bear the burden of the cost Executors must gather assets, settle debts, file tax returns, and distribute the remaining estate according to the will.

If the gift states it is ‘free from costs’ then is is residurary estate

Question 42

Who bears liability for payment of charges (e.g. a morgage over a house?)

Answer 42

Per s.35 AEA 1915, unless the will shows contrary intention, the asset charged bears liability for payment.

The beneficiary inherits property subject to the charge (e.g. a mortgage ) unless the testator expressly relieves the property of the charge so it comes out of the residue.

Question 43

Is there a 28 day survivorship period for wills?

Answer 43

No, there is no equivalent of the 28 day survivorship period imposed under the intestacy act.

However, an express survivorship clause can be included stating a beneficiary must survive by a certain period of time.

Question 44

What is a vested interest?

Answer 44

A gift vests if it is given outright and absolutely with no conditions to be met.

It is not about age. However, often a gift is made to a minor held on trust until they turn 18 at which point their interest vests.

Question 45

What is a contingent interest?

Answer 45

The beneficiary must satisfy a condition.
If a beneficiary dies before the interest vests, their estate would not be able to claim the property and the gift would fail

Question 46

How can a testator make a charitable gift?

Answer 46

Include…

• The full name and address or the organisation + charity number
• Consider whether there are tax implications
• Express provisions for change of name, amalgamation or ceasing to exist
• Provision for who can give valid receipt

A charitable gift stated to be for general charitable purposes results in the application of the cy-pres doctrine - the gift can be given to a different charity with a** similar purpose** where the original cannot take effect.

Question 47

What is the primary purpose of the IPFDA 1975?

Answer 47

To allow close relatives to apply to the court to vary the contents of a will or intestacy after the deceased’s death** if reasonable financial provision has not been made** from the deceased’s estate.

Question 48

Who can make an application under the IPFDA 1975?

Answer 48

• Close relatives
• Who are within the jurisdiction
• They demonstrate they fall within an eligible category
• Make their claim within the time limit.

Question 49

What is meant by ‘jurisdiction’ in relation to the IPFDA 1975?

Answer 49

The deceased must have died domiciled in England and Wales, which can include domicile of origin, domicile of dependency, or domicile of choice.

Question 50

Who are eligible applicants under section 1(1)(a)-(e) of the IPFDA 1975?

Answer 50

Eligible applicants include
* Spouse
* Civil partner
* Former spouse/civil partner who hasn’t remarried
* Cohabitant for two years prior to death, children (including adopted children)
* Stepchildren and those treated as children
* Those maintained by the deceased.

Question 51

Can an adopte child bring an IPFDA claim against their birth parent?

Answer 51

No. Adopted children are the children of the deceased, but adoption severs ties with the birth family.

Question 52

Does the applicant for IPFDA as a child of the deceased need to be a minor?

Answer 52

No. Any age counts.

Question 53

What is the definition of maintenance as per the IPFDA 1975?

Answer 53

• Maintenance refers to financial maintenance and not emotional support
• It must be a substantial contribution in money or its equivalent.

Question 54

What are the time limits for making an application under the IPFDA 1975?

Answer 54

An application cannot be made more than six months after the grant of representation, usually from the date of probate. The court may extend this time limit for special reasons.

Question 55

What grounds can be claimed for an application under the IPFDA 1975?

Answer 55

Grounds include that the deceased’s will did not make reasonable financial provision for the applicant or that the intestacy distribution fails to do so.

Question 56

What are the two categories to determine ‘reasonable financial provision’?

Answer 56

1. Surviving Spouse Standard: Provision that is reasonable for a spouse or civil partner.
2. Maintenance Standard: Provision that is reasonable for the applicant’s maintenance.

Question 57

Who does the surviving spouse standard apply to under IPFDA?

Answer 57

Surviving Spouse, but the court can extend to….
* Former spouse who has not remarried,
* Spouse who is judicially separated
* Former spouse whose divorce, dissolution or nullity occurred within 12 months of the death; and
* No order for financial provision has been made or refused already.

Question 58

What considerations does the court take into account for surviving spouses or civil partners?

Answer 58

The court considers
* Age and duration of marriage
* Contributions to the family
* What might have been expected in divorce proceedings.

Question 59

What considerations are taken into account for cohabitees?

Answer 59

• The age of the applicant
• Length of cohabitation
• Contributions made to the welfare of the deceased.

Question 60

What considerations are there for children of the deceased?

Answer 60

• The manner of education and training expected
• How the deceased maintained the applicant
• The extent of assumption for maintenance.

Question 61

What should be considered for other applicants under the IPFDA 1975?

Answer 61

• The length of maintenance
• Extent of contribution
• The deceased’s responsibility for maintenance.

Question 62

What does section 3 of the IPFDA 1975 outline?

Answer 62

It includes considerations such as the

• **Financial resources **and needs of the applicant and others
• Obligations of the deceased
• Size of the estate
• Any disabilities of any applicant
• Conduct of the applicant

Question 63

What is the role of Stage 2: Court Award under the IPFDA 1975?

Answer 63

To determine the value of the award based on the applicant’s assets and liabilities and the specific needs for maintenance.

Question 64

What types of awards can the court order under the IPFDA 1975?

Answer 64

• Periodical payments
• Lump-sum payments
• Property settlements
• Variations to the estate.
• Severing Joint tenancies

Question 65

How does the court’s consideration compare with divorce settlements?

Answer 65

For spouses or civil partners, the court considers the relief that might have been awarded if there was a divorce at the date of death, but this is only one of many factors.