Wills (Wills and IPFDA) Flashcards

1
Q

What is the effect of a valid will?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

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?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the legal requirments for a valid will?

A
  • Testor must be 18 or over
  • Satisfy testamentary capacity requirments
  • Satisfy knowledge and approval requirments
  • Satisfy formality requriments per s.9 WA
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

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

A

The intestacy rules will determine who inherits such assets.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

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

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What does a testator need to appreciate regarding their property?

A
  • 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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What moral claims must a testator appreciate?

A
  • 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.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

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

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

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

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Can a testator with fluctuating capacity make a valid will?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

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

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the presumption of capacity?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

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

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What must a testator have regarding knowledge and approval?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When is the presumption of knowledge removed?

A

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)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

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

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What invalidates a will even with knowledge and approval?

A

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.”
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

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

A

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)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is the formality requirment for witnesses?

A
  • 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.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

How should witnesses sign the will?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

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

A
  • 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.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What are introductory clauses in a will?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What should a revocation clause in a will ensure?

A
  • It should ensure that all previous wills are revoked.
  • Note, a will is valid without revocation but one should be included to avoid doubt
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What are burial and funeral wishes in a will?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the role of an executor?

A
  • Collects the deceased’s assets
  • Administers the estate
  • Pays debts, administration costs
  • Distributes assets to beneficiaries.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

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

A
  • 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.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

When can a guardian be appointed?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

How many trustees should be appointed if a trust arsies?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is a specific gift in a will?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What happens if a specific gift fails?

A

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…”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Can a testator leave a collection?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What does ‘chattel’ include and exclude?

A
  • 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.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What are general legacies?

A
  • 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.
34
Q

What is a residuary gift?

A

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

35
Q

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

A

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

36
Q

When does the will speak from when identifying subject matters?

A

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

37
Q

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

A

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’

38
Q

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

A

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. *

39
Q

When does a will speak from when identifying beneficiaries?

A

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.

40
Q

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

A

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.

41
Q

Are gifts (be default) made free of IHT?

A

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.

42
Q

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

A

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

43
Q

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

A

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.

44
Q

Is there a 28 day survivorship period for wills?

A

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.

45
Q

What is a vested interest?

A

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.

46
Q

What is a contingent interest?

A

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

47
Q

How can a testator make a charitable gift?

A

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.

48
Q

What is the primary purpose of the IPFDA 1975?

A

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.

49
Q

Who can make an application under the IPFDA 1975?

A
  • Close relatives
  • Who are within the jurisdiction
  • They demonstrate they fall within an eligible category
  • Make their claim within the time limit.
50
Q

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

A

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

51
Q

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

A

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.

52
Q

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

A

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

53
Q

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

A

No. Any age counts.

54
Q

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

A
  • Maintenance refers to financial maintenance and not emotional support
  • It must be a substantial contribution in money or its equivalent.
55
Q

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

A

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.

56
Q

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

A

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.

57
Q

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

A
  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.
58
Q

Who does the surviving spouse standard apply to under IPFDA?

A

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.

59
Q

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

A

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

60
Q

What considerations are taken into account for cohabitees?

A
  • The age of the applicant
  • Length of cohabitation
  • Contributions made to the welfare of the deceased.
61
Q

What considerations are there for children of the deceased?

A
  • The manner of education and training expected
  • How the deceased maintained the applicant
  • The extent of assumption for maintenance.
62
Q

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

A
  • The length of maintenance
  • Extent of contribution
  • The deceased’s responsibility for maintenance.
63
Q

What does section 3 of the IPFDA 1975 outline?

A

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
64
Q

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

A

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

65
Q

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

A
  • Periodical payments
  • Lump-sum payments
  • Property settlements
  • Variations to the estate.
  • Severing Joint tenancies
66
Q

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

A

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.

67
Q

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

A

Testator should add their initials/attest the amendment

Two witnesses should add their initials too.

68
Q

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?

A

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.

69
Q

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.

A

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

70
Q

How is IHT liability calculated - who bears it?

A

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.

71
Q

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.

A

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).

72
Q

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.

A

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

73
Q

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

A

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.

74
Q

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

A

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.

75
Q

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

A

Residue

76
Q

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

A

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

77
Q

What is a disclaimer?

How does it differ to variation?

A

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)

78
Q

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

A

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.

79
Q

What is the effect of a codicil?

A

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.

80
Q

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?

A

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.

81
Q

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

A

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.