WT Flashcards
Under the common law, which of the following is not necessary for a testator to have capacity to execute a will?
* (A) An understanding of the
nature of their assets.
* (B) Gifts to the people who ought to receive gifts.
* (C) An understanding of the
extent of their assets.
* (D) An understanding of who the testator would ordinarily give gifts to.
B
EXCEPTIONs TO PRESUMPTION OF
KNOWLEDGE AND APPROVAL
- Testator is blind or illiterate or will signed on their behalf
- Suspicious circumstances
A person may challenge a will on the basis that the testator made the will as a result of:
* (A) Force, familial relationship,
fraud, or undue influence.
O (B) Force, fear, fraud, or undue
influence.
O (C) Fear, fraud, forgery, or undue
influence.
O (D) Fear, familial relationship, forgery, or undue influence.
(B) is correct. A person may challenge a will on the basis that the testator made the will as a result of force, fear, fraud, or undue influence.
WILL FORMALITIES
WILL FORMALITIES
* In writing
* Signed by testator
Signed or acknowledged by testator in presence of two or more witnesses
Signed by witnesses in presence of testator
What are 3 WILL FORMALITIES
To make a valid will, a testator must have (1) had capactiy at the time the will was made, (2) intended to make a will, and (3) executed the will in accordance with the statutory formalities.
When is capacity measured in determining whether a will was validly executed?
Capacity is measured at the time the testator executes the will. This means the testator must have the necessary mental capacity to understand the nature of making a will, the extent of their assets, and the implications of their decisions regarding beneficiaries at the moment they sign the will for it to be considered validly executed.
What are the two circumstances in which the presumption that the testor knew the contents of their will when they signed it does not apply?
The presumption that the testator knew the contents of their will when they signed it does not apply in two circumstances: first, if the testator was blind, illiterate, or otherwise incapable of reading the will themselves; and second, if there is evidence of fraud or undue influence that may have affected the testator’s understanding or approval of the will’s contents at the time of signing.
(1) If the testator was blind or illiterate when the will was signed, or (2) if the will was signed under suspicious circumstances, such as when the drafter of a will benefits under the will.
What must be proved to show a will was procured through undue influence?
To show a will was procured through undue influence, it must be proven that the influencer exerted excessive pressure on the testator, which overpowered the testator’s free will and decision-making capacity, leading to a will that reflects the desires of the influencer rather than the true intentions of the testator. This requires demonstrating a relationship where the testator was susceptible to such influence and that the resultant will is a product of this undue pressure.
VALID ALTERATIONS
Alteration made before will was executed or executed like a will
Will reads naturally after alteration
What are the requirements for an alteration of a will to be valid?
(check all that apply)
(A) The alteration was made before the will was executed.
(B) That the alteration is initialled by the testator and witnesses.
* (C) The alteration fills in a blank.
* (D) The will must read naturally after the alteration.
(A) and (D) are correct. (B) is one way of proving that the alteration was made prior to execution of the will, but it is not required. For example, the witnesses may alternatively give testimony that the change was made prior to execution. Similarly, the fact that the alteration fills in a blank line on a will form could be proof that the alteration was made before the will was executed.
UNATTESTED ALTERATIONSCODICIL
Document that adds to, amends, or partially revokes existing will
UNATTESTED ALTERATIONS
* Not signed or initialled
* Unattested alteration presumed to have been made after execution unless filling in blank space
What is CODICIL?
CODICIL
Document that adds to, amends, or partially revokes existing will
Let’s make sure we have these rules straight. Which of the following statements is true?
O (A) Divorce generally
revokes a will of one of the
parties that was in existence at the time of the divorce, but marriage generally does not.
O (B) Both marriage and
divorce generally revoke wills of the parties that were in existence at the time of the marriage or the divorce.
* (C) Marriage generally revokes a pre-existing will, and divorce generally revokes gifts to the former spouse in a will made before the divorce.
* (D) Neither marriage nor
divorce affects a will in
existence at the time the
testator marries or divorces
unless the testator so
declares.
(C) is correct. I did my best to confuse you with words, but hopefully I didn’t succeed. Remember our basic rule: marriage generally revokes an existing will of a party, but divorce revokes only gifts and appointments in favour of the former spouse.
IMPORTANT
Later will revokes earlier will to extent that later will is inconsistent with earlier will
- Match the result to the event by typing the letter of the consequence next to the corresponding conduct.
A - The will is revoked
B - The will is not revoked
C - The will is partly revoked
- The testator gets married three years after executing her will.
- The testator executes a will in 2017 and then executes a codicil in 2020.
- The testator, intending to revoke her will, throws it in a fire and burns it.
- The testator gets divorced five years after executing her will, which left most of her estate to her husband.
- The testator accidentally shreds her will while shredding other documents.
A
C
A
C
B
- What is a codicil?
* (A) A statutory provision that sets out one of the
rules for execution of a will.
* (B) A document executed after a will is executed
that changes one or more provisions of the will.
* (C) The space in a will set aside for the witnesses
to sign and attest to due execution of the will.
B
(B) is roughly the definition. There is no special name for (A), and (C) roughly describes an attestation clause. Remember that codicils are not as common as they once were - now that we can print a new will with the click of a mouse - but they were very useful in the age when new wills had to be retyped (or, before then, rewritten by a scribe) from scratch. In any case, the fact that they are not commonly used doesn’t mean that you won’t see the term on your exam, so take heed.
- True or False? If a testator was in posession of their will before they died, and the will cannot be found after the testator’s death, a rebuttable presumption will arise that the testator destroyed the will.
O True
O False
True
What is Legacy and Devise?
LEGACY
Gifts of personal property
DEVISE
Gift of real property
What types of legacies?
TYPES OF LEGACIES
* Specific: gift of particular asset identified in will
* General: gift that does not identify particular item
* Pecuniary: gift of cash
* Demonstrative: general legacy which identifies source of gift
* Residuary: gift of rest of deceased’s estate
Match the gift with the corresponding type of legacy by typing the correct letter in each box.
A - Demonstrative legacy
B - General legacy
C - Pecuniary legacy
D - Residuary legacy
E - Specific legacy
- “I give the rest of my estate to Iris.”
- “I give a laptop to Fran.”
- “I give £1,000 to Neil.”
- “I give my emerald ring to Sally.”
- “I give £5,000 to Megan, to be paid from my savings account held at XYZ Bank.
D
B
C
E
A
Just so you have this straight, if a gift is of “my car” or “my ring” when will the will be treated as speaking?
* (A) The date of the testator’s death.
O (B) The date of the will’s execution.
(B) is correct. Although the general rule is that gifts speak at the date of death, for gifts like these we presume that the testator had a contrary intention and wanted the beneficiary to receive the gift as it was on the day of the will’s execution.
SPeCIFIC GIFT FAILS IF IT:
SPeCIFIC GIFT FAILS IF IT:
* Is no longer part of the estate
* Is subject to binding contract for sale
* No longer meets description in will
A testator’s will leaves her estate to her son, her daughter, and her friend in equal shares. The son and the friend die before the testator, and they each leave one child. At the testator’s death, who inherits her estate?
* (A) The daughter only.
* (B) The son’s child only.
* (C) The daughter and the son’s child.
* (D) The daughter, the son’s child, and the friend’s
child.
(C) is correct. The daughter and the son’s child inherit the testator’s estate. If a gift is made to a testator’s child or other issue who dies before the testator and who leaves living issue, the living issue will receive the gift. Therefore, the son’s child receives the son’s gift. This rule does not save gifts to beneficiaries other than the testator’s issue, so the gift to the friend is not saved for the friend’s child.
- What’s the difference between lapse and ademption?
Lapse occurs when a beneficiary named in a will predeceases the testator, leading to the gift “lapsing” or failing, unless the will provides for an alternate arrangement. Ademption, on the other hand, happens when a specific bequest in a will (like a particular item or property) is no longer part of the testator’s estate at the time of their death, causing the gift to be “adeemed” or voided, as the specific item can no longer be given.
Which of the following situations will not cause a specific gift to adeem?
* (A) The gift is subject to a binding contract for
sale.
* (B) The gift has changed in name or form.
* (C) The gift no longer meets the description in the
will.
* (D) The gift is no longer part of the testator’s
estate.
(B) is correct. A specific gift will adeem if it is subject to a binding contract for sale, no longer meets the description in the will, or is no longer part of the testator’s estate. A change in the name or form of the gift does not cause it to adeem.
Under intestate succession, what does a surviving spouse receive if there are also surviving issue?
(check all that apply)
* (A) Half of the residue of the
estate.
* (B) Personal chattels.
(C) Half of the interest in the matrimonial home.
* (D) The entire estate.
* (E) £270,000.
(A), (B), and (E) are correct. If there is a surviving spouse and issue, the spouse takes personal chattels, £270,000 and half of the residue of the estate.
ORDER OF ENTITLEMEnT
ORDER OF ENTITLEMEnT
* Issue
* Parents
* Brothers and sisters of whole blood
* Brothers and sisters of half blood
A man dies, survived by his mother and a sister. He was never married and had no children. Who inherits his estate?
* (A) The mother only.
* (B) The sister only.
O (C) The mother and sister in equal shares.
A. The mother inherits the man’s estate. Parents come before siblings in the order of entitlement.
ORDER OF ENTITLEMEnT
ORDER OF ENTITLEMEnT
* Must be 18 to inherit by intestacy
* Adopted children treated as children of adoptive parents
* Rules apply regardless of child’s parents’ marital status
* Stepchildren not considered issue
JOINT TENANcY
JOINT TENANcY
* Right of survivorship
* Surviving joint tenant entitled to asset when other dies
List the order of entitlement for intestate succession when there is no surviving spouse.
The order of entitlement is issue > parents > siblings of the whole blood > siblings of the half blood.
An unmarried woman dies. She had no will. She had two children: a son and a daughter. The son died in a car accident two years before the woman’s death. He had two children of his own. The woman’s daughter is still living.
How should the woman’s estate be divided?
* (A) The daughter receives all of the estate.
* (B) The daughter and the son’s two children share the estate equally; one third each.
* (C) The daughter receives half of the estate,
and the son’s children receive a quarter each.
(C) is correct. If a beneficiary dies before the intestate, the beneficiary’s issue take the beneficiary’s share. The son’s two children therefore inherit the son’s share
equally between them as his issue.
True or False?
The proceeds of a life assurance policy pass outside the deceased’s will or rules of intestacy, but they form part of the deceased’s taxable estate.
False. The proceeds of a life assurance policy do not form part of the deceased’s taxable estate.
Terminology can be important in wills questions, so let’s make sure you have this down: when is a PR an administrator?
If there is no will, or if there is a will, but no named executor is able or prepared to act, the PR is an administrator. If the PR is provided for in the will, the PR is an executor. Getting this terminology down now will help you later.
What do we mean when we say an executor renounces? And what do we mean when we say an executor asks for power to be reserved?
Renunciation means an executor indicates in writing that they do not wish to serve as executor. They can renounce only if they have not intermeddled - that is, only if they have not done something relevant to the estate. A reservation is when the named executor indicates that they do not want to be involved now, but if the substitute executor fails in their duties, the executor whose power is reserved is willing to step in and take over.
Match the type of grant of representation by typing its corresponding letter next to the situation for which it is used.
A - Grant of probate
B - Grant of letters of administration with will annexed
C - Grant of letters of administration
- The deceased did not leave a will.
Grant of representation: - The deceased left a valid will.
Grant of representation - The deceased left a valid will, but there is no executor.
Grant of representation
1C
2A
3B
- Fill in the blank using one of the below letter choices:
A - A grant de bonis non
B - A grant of probate
C - Letters of administration
D - Letters of administration with will annexed
A testator dies with a valid will, but the executor named in the will renounces probate. The testator’s adult daughter wants to administer the testator’s estate. She should apply for and clear off the executor and anyone having a better right to the grant.
D
The daughter should apply for letters of administration with will annexed. This grant is used when the deceased left a valid will but there is no executor.
- True or False?
An executor loses their right to renounce by intermeddling in the estate.
O True
O False
True. An executor loses their right to renounce by intermeddling in the estate. This is not true for administrators
SUPPORT FOR GRANT
APPLICATION
SUPPORT FOR GRANT
APPLICATION
* Will plus two copies
Official copy of death certificate
* Further supporting documents
* Tax form
FURTHER EVIDENCE FOR GRAnT
FURTHER EVIDENCE FOR
GRAnT
Evidence of due execution
* Affidavit confirming deceased’s full name
Affidavit of knowledge and approval
Affidavit confirming timing of alterations
* Documents referred to in will
Affidavit of plight and condition
Match the legal filing with its use, by typing the corresponding letter of the legal filing next to each use.
A - Caveat
B - Citation to accept or refuse a grant
C - Citation to take probate
- Force an executor to accept probate.
Legal filing: - Clear off a person with a prior right to a grant.
Legal filing: - Prevent the issue of a grant.
Legal filing:
C
B
A
important but not necessary
Addendum
PRE-GRANT PROCEDURE, APPLYING TO THE COURT, & DEALING WITH HMRC
Since the lecture was recorded, the procedure for applying for the grant has changed.
If the estate is an ‘excepted estate’, no formal IHT account has to be filed unless HMRC request one. Please ignore references in the lecture to IHT Form 205.
Where the estate is not excepted, the PRs must send the IHT form and pay the IHT to HMRC before they apply for the grant. HMRC will then send a receipt to HMCTS Probate.
Where IHT is payable, the grant will not be issued until HMCTS Probate get the IHT receipt.
Please note that the PRs or their solicitor no longer send an IHT form direct to HMCTS Probate.
TRANSFERABLE NIL RATE
BAND
TRANSFERABLE NIL RATE
BAND
* Deceased spouse
* Spouse did not use all their nil rate band
* Unused nil rate band transferable to spouse
What are the two characteristics of an excepted estate?
An excepted estate is an estate that owes no inheritance tax and does not have to file a formal inheritance tax account.
An excepted estate has two main characteristics: it is not liable for inheritance tax due to its value being below the inheritance tax threshold, and it does not contain any complex elements that would require a full Inheritance Tax account to be delivered to HMRC. This simplifies the administration process for smaller or less complicated estates.
Ethan and Ruby were married. Ruby dies, leaving her entire estate worth £50,000 to Ethan. The nil rate band is £325,000.
A few years later, Ethan dies. The nil rate band is the same.
What nil rate band amount should be used for Ethan’s estate?
* (A) £50,000
O (B) £325,000
O (C) £600,000
O (D) £650,000
D
Ruby’s estate did not use any of its nil rate band because transfers to spouses are exempt from inheritance tax. The unused percentage of the predeceasing spouse’s nil rate band can be transferred to their spouse. Since Ruby didn’t use any of her NRB, the unused percentage is 100%. When we transfer NRB, we multiply the current NRB by the percentage transferable (£325,000 x 100% = £325,000). Thus, £325,000 is added to Ethan’s £325,000 to make £650,000.
What is nil rate?
The “nil rate” often refers to the “nil rate band” in the context of UK inheritance tax. It is the threshold up to which no inheritance tax is charged on an estate when someone dies. If the total value of the deceased’s estate is below this threshold, no inheritance tax is payable. For any portion of the estate above this threshold, inheritance tax is charged at a set rate, which has been 40% for several years. The nil rate band can vary over time due to changes in tax legislation. As of my last update in April 2023, the nil rate band was £325,000. It’s important to note that there are certain allowances and reliefs that can affect how much inheritance tax is ultimately due, such as the transferable nil rate band between spouses and the residence nil rate band.
Question 1:
What information should a probate solicitor initially gather when dealing with a deceased’s estate?
Answer: A probate solicitor should initially gather full details of the deceased’s family members, beneficiaries, assets, and liabilities. This includes registering the death with various institutions like banks, insurance companies, and HMRC, and potentially obtaining specialist valuations for certain assets like land or unquoted company shares.
Example: Upon the death of Mr. John Smith, a probate solicitor collects information about his surviving family members, including his spouse and two children. They also gather details on his assets, including a house valued at £300,000, a car worth £20,000, savings amounting to £50,000, and outstanding liabilities totaling £30,000.
Question 3:
What are the key steps in applying for a grant of representation?
Answer: The key steps include filling out the appropriate application form, attaching the will and two copies if applicable, an official copy of the death certificate, any required supporting documents such as affidavits for due execution, and the appropriate tax form indicating inheritance tax details. Probate fees must also be paid.
Example: To apply for a grant of probate for her late mother, Ms. Anne Taylor completes the application form, attaches her mother’s will and death certificate, includes an affidavit confirming her mother signed the will as “Ann T.”, and submits the inheritance tax form along with the probate fees to the court.
Question 2:
How can potential Personal Representatives (PRs) handle the payment of inheritance tax to obtain a grant of representation when they need to access
estate assets?
Answer: Potential PRs can handle the payment of inheritance tax by asking the deceased’s bank to release funds directly to HMRC, seeking a loan from a bank or beneficiary with a repayment undertaking, requesting life assurance proceeds be paid directly to HMRC if applicable, or selling assets that can be liquidated without a grant.
Example: Mrs. Elizabeth Green, a potential PR for her late husband’s estate, arranges with his bank to release £15,000 from his savings account directly to HMRC to cover the estimated inheritance tax due, enabling her to proceed with obtaining a grant of probate.
