Workshop 8: Wills - Drafting and Interpretation

Question 1

What are the three main categories of clauses in a wall called?

Answer 1

1. Introductory clauses
2. Clauses disposing of property
3. Administrative clauses and attestation

Question 2

What is the difference in roles between the executor and trustee?

Answer 2

1. Executor
   - Primarily, responsible for administering estate
2. Trustee
   - Ensure management of trusts that continue following estate administration

Question 3

How long does the duty of an executor v trustee last?

Answer 3

1. Executor
   - Their task is complete after having distributed remaining assets to beneficiaries
2. Trustee
   - For as long as trust exists

Question 4

Are executors or trustees beneficial owners of the assets they manage?

Answer 4

No

Question 5

What is the executor v trustee responsible for when it comes to ‘assets’?

Answer 5

1. Executor
   - Assets within an estate
2. Trustee
   - Assets held in trust

Question 6

What does ‘legacy’ refer to?

Answer 6

A gift of ‘chattels’ or ‘personalty’

Question 7

What does ‘devise’ refer to?

Answer 7

A gift of real property (land)

Question 8

Which order do dispositive clause appear in the will regarding different categories of gifts?

Answer 8

1. Specific (including fits of chattels)
2. General
3. Pecuniary
4. Residuary

Question 9

What is the word when a testator does now own something they intend to give to a beneficiary at the date of death?

Answer 9

The gift adeems; it fails to take effect and the beneficiary receives nothing

Question 10

How does s 55 of the AEA 1925 define ‘chattel’, including what it excludes?

Answer 10

As all tangible movable property except for

• Money or securities for money
• Assets used at intestate’s death solely/mainly for business purposes
• Assets held at intestate’s death solely as an investment

Question 11

Where does property owned as joint tenant pass?

Is this property distributed under the terms of the deceased’s will/intestacy?

Answer 11

Outside of the succession estate

No, it is not distributed under the terms of the deceased’s will/intestacy

Question 12

Where does property owned solely pass?

Is this property distributed under the terms of the deceased’s will/intestacy?

Answer 12

Passes within the succession estate

It will pass in accordance with the deceased’s will/intestacy

Question 13

Where does property owned jointly as tenants in common pass?

Is this property distributed under the terms of the deceased’s will/intestacy?

Answer 13

Passes within the succession estate

It will pass in accordance with the deceased’s will/intestacy

Question 14

What law applies when the deceased owned property as joint tenants upon death?

Answer 14

The law of survivorship - property automatically passes to surviving co-owner

Question 15

What should the testator do if they wish for their solely or jointly owned (as. tenants in common) property to be given to a sole beneficiary of residuary estate?

Answer 15

Nothing - no specific provision within the will is required

Question 16

What should the testator do if they do not have a beneficiary in mind their solely or jointly owned (as. tenants in common) property?

Answer 16

Nothing - no specific provision within the will is required

Question 17

What [usual] considerations should be made if the testator wants to give their interest in a property to particular beneficiary(ies)?

Answer 17

1. The property must be identifiable, with full address and registered title number
2. Express clause stating what will happen if the property is no longer owned by the testator
3. Property must be capable of passing under the will
4. Solicitor to check if any third party rights affect the property/ if its held on trust for anyone else

Question 18

What must be done if the testator wishes to pass joint tenants property under the will?

Answer 18

The joint tenancy will need to be severed

Question 19

What must be done if the testator wishes to pass their share of joint tenants in common property under the will?

Answer 19

The testator needs advising on the rights of the co-owner

Question 20

What type of gift is ‘a general legacy’?

Answer 20

A gif tof property which is not distingushes from preoperty of a similar type

Question 21

How can you determine if a gift is ‘a general legacy’?

Answer 21

Wording use of ‘a’ rather than ‘my’

Question 22

What are ‘pecuniary legacy’?

Answer 22

Gifts of cash/money

Question 23

What is a ‘demonstrative legacy’?

Answer 23

A type of ‘general legacy’ which in the will directs gift should be paid out of a specific fund

Question 24

What happens if the funds concerning a ‘demonstrative [pecuniary] legacy’ are insufficient or ceases to exist?

Answer 24

The specific ‘demonstrative legacy’ will become what is left of the fund and the balance of the legacy is paid as a ‘general legacy’

Question 25

What is a ‘residuary legacy’?

Answer 25

A gift of all of the testator’s succession estate that has not already been disposed of under the will

Question 26

What is the meaning of ‘succession estate’?

Answer 26

The testator’s property that is capable of passing by the will

Question 27

What does a failure of a ‘residuary legacy’ result in?

Answer 27

A full orpartial intestacy

Question 28

What’s the name of the clause which ensures the testator distributes of their property as they wish, when the initial wish may fail?

Answer 28

A ‘substitution clause’

Question 29

When are items referred to as ‘my’, ‘now’ and ‘at present’ made in the will?

Answer 29

Describes property owned at the date of the will

Question 30

What is the effect of using words implying ‘conrary intention’?

Answer 30

That the testator means those items ‘at the date of death’

Question 31

When does the ‘class close’?

Answer 31

When the first beneficiary in the class obtains a vested interest

Question 32

How can the ‘contrary intention’ concept be combatted?

Answer 32

By the testator instructing the solicitor/person writing their will whether

• The gift that are intending to gift is a gift owned at the date of the will;
• Date of death;
• Include items acquired in the future
• People included after the testator dies, or up until a certain date

Question 33

Can legacies be drafted expressly as ‘free from tax’ and for the residuary estate to bear the burden of tax?

Answer 33

Yes

Question 34

Would the estate be subject to IHT if the will was drafted without the term ‘free of tax’?

Answer 34

Yes

Question 35

Who bears the burden of cost of delivery of gifted property and expenses incurred since date of death in preserving item?

Answer 35

Beneficiaries

Question 36

How can the burden of cost of delivery of gifted property and expenses incurred since date of death in preserving item be alleviated from a beneficiaries?

Answer 36

Express provisions

Question 37

What would an express provision of a testator look like if they wanted the expenses/cost of transfer to be made out of the residuary estate?

Answer 37

The gift should be stated to be ‘free of expenses and/or costs of transfer’

Question 38

What does a testator’s PR need to do if a property is subject to a secured debt/charge, like a mortgage over a house?

Answer 38

They will need to consider whether the repayment of that debt is a cost of the estate

Question 39

Is there a ‘28 day survivorship period’ for spouses/civil partners as under the intestacy rules for taking a gift under a will?

Answer 39

No

Question 40

What happens if the beneficiary predeceases the testator?

Answer 40

The gift lapses subject to s.33 Wills Act 1837

Question 41

Can one included an express survivorship clause in the will?

Answer 41

Yes

Question 42

What date does the will speak from, unless a contrary intention is shown?

Answer 42

Date of death

Question 43

When is the category of people included in a will referenced to, unless otherwise expressly stated?

Answer 43

Date of execution [of will]

Question 44

When is the collection of items include in a will referenced to/identified by, unless otherwise expressly stated?

Answer 44

Date of death

Question 45

Is a gift in a will made free of IHT, unless otherwise expressly stated?

Answer 45

Yes

Question 46

Is a specific gift in a will made exclude expenses and costs of transfer, unless otherwise expressly stated?

Answer 46

No - it is subject to expenses and costs of transfer

Question 47

Does a gift of property subject to a charge bear the liability of that charge?

Answer 47

Yes