Workshop 8: Wills - Drafting and Interpretation Flashcards
What are the three main categories of clauses in a wall called?
- Introductory clauses
- Clauses disposing of property
- Administrative clauses and attestation
What is the difference in roles between the executor and trustee?
- Executor
- Primarily, responsible for administering estate - Trustee
- Ensure management of trusts that continue following estate administration
How long does the duty of an executor v trustee last?
- Executor
- Their task is complete after having distributed remaining assets to beneficiaries - Trustee
- For as long as trust exists
Are executors or trustees beneficial owners of the assets they manage?
No
What is the executor v trustee responsible for when it comes to ‘assets’?
- Executor
- Assets within an estate - Trustee
- Assets held in trust
What does ‘legacy’ refer to?
A gift of ‘chattels’ or ‘personalty’
What does ‘devise’ refer to?
A gift of real property (land)
Which order do dispositive clause appear in the will regarding different categories of gifts?
- Specific (including fits of chattels)
- General
- Pecuniary
- Residuary
What is the word when a testator does now own something they intend to give to a beneficiary at the date of death?
The gift adeems; it fails to take effect and the beneficiary receives nothing
How does s 55 of the AEA 1925 define ‘chattel’, including what it excludes?
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
Where does property owned as joint tenant pass?
Is this property distributed under the terms of the deceased’s will/intestacy?
Outside of the succession estate
No, it is not distributed under the terms of the deceased’s will/intestacy
Where does property owned solely pass?
Is this property distributed under the terms of the deceased’s will/intestacy?
Passes within the succession estate
It will pass in accordance with the deceased’s will/intestacy
Where does property owned jointly as tenants in common pass?
Is this property distributed under the terms of the deceased’s will/intestacy?
Passes within the succession estate
It will pass in accordance with the deceased’s will/intestacy
What law applies when the deceased owned property as joint tenants upon death?
The law of survivorship - property automatically passes to surviving co-owner
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?
Nothing - no specific provision within the will is required
What should the testator do if they do not have a beneficiary in mind their solely or jointly owned (as. tenants in common) property?
Nothing - no specific provision within the will is required
What [usual] considerations should be made if the testator wants to give their interest in a property to particular beneficiary(ies)?
- The property must be identifiable, with full address and registered title number
- Express clause stating what will happen if the property is no longer owned by the testator
- Property must be capable of passing under the will
- Solicitor to check if any third party rights affect the property/ if its held on trust for anyone else
What must be done if the testator wishes to pass joint tenants property under the will?
The joint tenancy will need to be severed
What must be done if the testator wishes to pass their share of joint tenants in common property under the will?
The testator needs advising on the rights of the co-owner
What type of gift is ‘a general legacy’?
A gif tof property which is not distingushes from preoperty of a similar type
How can you determine if a gift is ‘a general legacy’?
Wording use of ‘a’ rather than ‘my’
What are ‘pecuniary legacy’?
Gifts of cash/money
What is a ‘demonstrative legacy’?
A type of ‘general legacy’ which in the will directs gift should be paid out of a specific fund
What happens if the funds concerning a ‘demonstrative [pecuniary] legacy’ are insufficient or ceases to exist?
The specific ‘demonstrative legacy’ will become what is left of the fund and the balance of the legacy is paid as a ‘general legacy’
What is a ‘residuary legacy’?
A gift of all of the testator’s succession estate that has not already been disposed of under the will
What is the meaning of ‘succession estate’?
The testator’s property that is capable of passing by the will
What does a failure of a ‘residuary legacy’ result in?
A full orpartial intestacy
What’s the name of the clause which ensures the testator distributes of their property as they wish, when the initial wish may fail?
A ‘substitution clause’
When are items referred to as ‘my’, ‘now’ and ‘at present’ made in the will?
Describes property owned at the date of the will
What is the effect of using words implying ‘conrary intention’?
That the testator means those items ‘at the date of death’
When does the ‘class close’?
When the first beneficiary in the class obtains a vested interest
How can the ‘contrary intention’ concept be combatted?
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
Can legacies be drafted expressly as ‘free from tax’ and for the residuary estate to bear the burden of tax?
Yes
Would the estate be subject to IHT if the will was drafted without the term ‘free of tax’?
Yes
Who bears the burden of cost of delivery of gifted property and expenses incurred since date of death in preserving item?
Beneficiaries
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?
Express provisions
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?
The gift should be stated to be ‘free of expenses and/or costs of transfer’
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?
They will need to consider whether the repayment of that debt is a cost of the estate
Is there a ‘28 day survivorship period’ for spouses/civil partners as under the intestacy rules for taking a gift under a will?
No
What happens if the beneficiary predeceases the testator?
The gift lapses subject to s.33 Wills Act 1837
Can one included an express survivorship clause in the will?
Yes
What date does the will speak from, unless a contrary intention is shown?
Date of death
When is the category of people included in a will referenced to, unless otherwise expressly stated?
Date of execution [of will]
When is the collection of items include in a will referenced to/identified by, unless otherwise expressly stated?
Date of death
Is a gift in a will made free of IHT, unless otherwise expressly stated?
Yes
Is a specific gift in a will made exclude expenses and costs of transfer, unless otherwise expressly stated?
No - it is subject to expenses and costs of transfer
Does a gift of property subject to a charge bear the liability of that charge?
Yes
