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

A decides to execute his will at home.

He signs the will in his living room while his two neighbours, who are acting as witnesses, are in the kitchen.

Does this satisfy s.9? In other words, does A have to sign the will in the presence of the witnesses?

Answer 2

It is valid

The testator’s signature must be made or acknowledged in the presence of two witnesses.

They do not need to see him sign it so long as it is attested.

Question 3

What are the legal requirments for a valid will?

Answer 3

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

Question 4

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

Answer 4

The intestacy rules will determine who inherits such assets.

Question 5

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

Answer 5

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 6

What does a testator need to appreciate regarding their property?

Answer 6

• 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 7

What moral claims must a testator appreciate?

Answer 7

• 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 8

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

Answer 8

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 9

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

Answer 9

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 10

Can a testator with fluctuating capacity make a valid will?

Answer 10

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

Question 11

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

Answer 11

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 12

What is the presumption of capacity?

Answer 12

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 13

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

Answer 13

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 14

What must a testator have regarding knowledge and approval?

Answer 14

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

Question 15

When is the presumption of knowledge removed?

Answer 15

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 16

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

Answer 16

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

Question 17

What invalidates a will even with knowledge and approval?

Answer 17

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 18

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

Answer 18

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 19

What is the formality requirment for witnesses?

Answer 19

• 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 20

How should witnesses sign the will?

Answer 20

• 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 21

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

Answer 21

• 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 22

What are introductory clauses in a will?

Answer 22

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

Question 23

What should a revocation clause in a will ensure?

Answer 23

• 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 24

What are burial and funeral wishes in a will?

Answer 24

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

Question 25

What is the role of an executor?

Answer 25

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

Question 26

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

Answer 26

• 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 27

When can a guardian be appointed?

Answer 27

• 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 28

How many trustees should be appointed if a trust arsies?

Answer 28

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

Question 29

What is a specific gift in a will?

Answer 29

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

Question 30

What happens if a specific gift fails?

Answer 30

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 31

Can a testator leave a collection?

Answer 31

• 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 32

What does ‘chattel’ include and exclude?

Answer 32

• 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 33

What are general legacies?

Answer 33

• 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 34

What is a residuary gift?

Answer 34

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

Question 35

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

Answer 35

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

Question 36

When does the will speak from when identifying subject matters?

Answer 36

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

Question 37

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

Answer 37

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 38

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

Answer 38

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 39

When does a will speak from when identifying beneficiaries?

Answer 39

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 40

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

Answer 40

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 41

Are gifts (be default) made free of IHT?

Answer 41

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 42

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

Answer 42

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 43

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

Answer 43

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 44

Is there a 28 day survivorship period for wills?

Answer 44

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 45

What is a vested interest?

Answer 45

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 46

What is a contingent interest?

Answer 46

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 47

How can a testator make a charitable gift?

Answer 47

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 48

What is the primary purpose of the IPFDA 1975?

Answer 48

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 49

Who can make an application under the IPFDA 1975?

Answer 49

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

Question 50

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

Answer 50

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

Question 51

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

Answer 51

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 52

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

Answer 52

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

Question 53

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

Answer 53

No. Any age counts.

Question 54

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

Answer 54

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

Question 55

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

Answer 55

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 56

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

Answer 56

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 57

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

Answer 57

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 58

Who does the surviving spouse standard apply to under IPFDA?

Answer 58

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 59

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

Answer 59

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

Question 60

What considerations are taken into account for cohabitees?

Answer 60

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

Question 61

What considerations are there for children of the deceased?

Answer 61

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

Question 62

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

Answer 62

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

Question 63

What does section 3 of the IPFDA 1975 outline?

Answer 63

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 64

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

Answer 64

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

Question 65

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

Answer 65

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

Question 66

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

Answer 66

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.

Question 67

What must happen for an alteration to a will to be valid?

Answer 67

Testator should add their initials/attest the amendment

Two witnesses should add their initials too.

Question 68

A, decides to execute her will at her office.

She signs her will in the presence of her colleagues, B and C.

Immediately after A signs, B and C leave the room one after the other and separately sign the will in their own offices

Is it valid?

Answer 68

No, because both witnesses must sign the will in the presence of the testator.

The testator’s signature be made or acknowledged in the presence of two witnesses who must also sign the will in the presence of the testator.

Question 69

Is an alteration valid if there are no witness signatures?

For example,

A executed her will in June 2020, leaving her entire estate to her son, D. Later, she decided to amend her will, writing a new clause in A signed next to the alteration, but it was not witnessed.

Answer 69

No

Alterations made after the execution of the will must comply with the formal requirements of being signed and witnessed. As S’s alteration was not witnessed, it is invalid. The other options are incorrect because the alteration is invalid and so the niece will not receive any benefit from the estate. The intestacy rules do not apply because the original wording is still apparent and so will be given effect to and D will rece

Question 70

How is IHT liability calculated - who bears it?

Answer 70

IHT liability is apportioned based on the value of the respective assets relative to the estate.

If they are within the succession estate, liability falls within the PRs domain

If the asset is outside the succession estate (e.g. joint tenancy property) the beneficiary must pay IHT on that asset.

Question 71

What is the rule for IHT valuation when faced with assets that are more valuable together than individually?

For example, A deceased individual owned a painting that is part of a pair. Each painting individually is worth £15,000. However, as a pair, their combined value is £40,000. The other painting in the pair is owned by their surviving spouse.

Answer 71

When assets are more valuable together than individually, each asset is valued at its proportionate share of the combined total value IF the deased owns all the items.

In the example, since the pair is worth £40,000 together, each painting is valued at £20,000 (half of £40,000).

Question 72

How are assets valued for IHT purposes if they are part of a collection, but the deceased doesn’t own the collection?

For example, A owned one of four antique chairs forming a complete set. Individually, each chair is worth £5,000. However, as a set, their combined value is £30,000. The other three chairs in the set are owned by a surviving sibling.

Answer 72

The related property rules do not apply if the collection is not owned by the deceased.

In the example, the chair should be valued at £5,000, as its individual value

Question 73

What happens if a if the original beneficiary makes a distributions intended by the testator within 2 years of the testator’s death?

For example, J’s will left his entire estate to his daughter, E, with the expressed wish that she should use £10,000 to support his brother. E decided to follow her father’s wishes

Answer 73

Under s 143 IHTA, if the original beneficiary makes the distributions intended by the testator within 2 years of the testator’s death, these are treated for IHT purposes as gifts made by the testator’s will and not by the original beneficiary.

Note, , s 143 IHTA does not require a formal deed of variation; the writing back effect happens automatically.

Question 74

What specific factor must the court consider in assessing an IPFDA Claim for cohabitees?

Answer 74

The court specifically needs to consider the length of time the applicant and the deceased lived together as spouses or civil partners until the date of death, as part of the assessment for reasonable financial provision.

Question 75

What clause, if it fails, is most likely to give rise to a partial intestacy?

Answer 75

Residue

Question 76

When does s.15 WA apply and what effect does it have on a gift?

Answer 76

Any gifts to an attesting witness or their spouses are void, but the will remains valid apart from those gifts.

Question 77

What is a disclaimer?

How does it differ to variation?

Answer 77

You reject the inheritance. You cannot disclaim if you have accepted your inheritance (e.g. receipt of the gifted money)

Variation concerns giving your entitlement to someone else for tax purposes as if the gift had been made via the will (i.e treat as coming from death estate not beneficiary)

Question 78

What are precatory trusts? What effect does it have in relation to ‘writing back’?

Answer 78

Precatory are not trusts

Usually in the form of ‘letter of wishes’

This is not legal obligation. However, s.143 IHTA may apply so that HMRC recognise that you may be gifting due to a moral obligation and recieve tax relief due to that.

This is the writing back effect.

Question 79

What is the effect of a codicil?

Answer 79

The execution of the codicil means that the will is treated as having been republished and any gifts read ‘at the date of execution’ are from the execution of the codicil.

Question 80

A man has just died. His will leaves the residue of his estate to his daughter but contains the following specific legacie:

“my Jaguar car to my cousin”.

This legacy is included in the original will, which was executed four years ago.

Three years ago, the man replaced his car with a newer model Jaguar.

A codicil was executed two years ago.

To whom does the car pass?

Answer 80

The car will go to the cousin

This is because the execution of the codicil means that the will is treated as having been republished

Reference is now to the Jaguar owned at the date of the codicil.

Question 81

Under s.142 IHTA, when must a variation of a will be made and how to have the ‘writing back’ effect?

Answer 81

A variation must be made in writing within two years of the deceased’s death.

It must contain an express statement that it is intended to have effect for IHT purposes in order to achieve the ‘writing-back’ effect and be treated as a disposition made by the deceased for IHT purposes

The variation should not be made in consideration of money or money’s worth.

Question 82

Where an asset is given away during an individual’s lifetime but they continue to derive a benefit from that asset, how can you avoid it being regarded as part of their estate?

Answer 82

The payment of a full market rent would avoid the reservation of benefit.

Question 83

If a remainder/reversionary beneficiary has died before the interest is vested in him, what happens?

Answer 83

It will lapse and cannot form part of his estate.

Question 84

Can a mutual will sever a joint tenancy?

Answer 84

Yes

Where parties make mutual wills, they are in effect entering into a contract, and this can also serve to sever a joint tenancy where the parties state that they are leaving a particular percentage of the property by will.

Question 85

Life assurance policy proceeds which are payable to the estate

Do they form part of the succession estate and are they liable to IHT?

Answer 85

Yes

They form part of the estate and are liable to inheritance tax.

Question 86

Where an assurance policy is written in trust, do they form part of the succession estate and are they liable to IHT?

Answer 86

It does not form part of the estate, and will not be liable to inheritance tax on his death

Question 87

If you nominate a beneficiary in relation to a death in service payment, are the trustees obliged to make the payment according to the nomination?

Answer 87

They are not obliged to make the payment direct, the trustees may also make a payment direct to the estate.

If the payment is made to the estate, it will be subject to the terms of the will.

Question 88

What effect does undue influence have on a will?

Answer 88

If undue influence can be proved the will is invalid and any previous will which was revoked may be revived.