1. Validity of Wills and Intestacy Flashcards
1
Q
What is joint property?
A
Property held by two or more as joint tenants.
2
Q
What happens to joint property upon one’s death?
A
The interest passes to the surviving joint tenant through the doctrine of survivorship.
3
Q
Does the doctrine of survivorship apply to tenants in common?
A
No, property held as tenants in common passes within the wills and intestacy rules.
4
Q
Who does the benefit of a life assurance policy belong to?
A
The owner of the policy.
5
Q
What happens to a life assurance policy upon one’s death?
A
The policy matures and the insurance company pays the proceeds to the deceased’s PR’s, who then distribute the money according to the will.
6
Q
What happens if the deceased had put the insurance policy in a trust?
A
The policy no longer belongs to them, and the insurance company pays the proceeds to the beneficiaries of the trust, regardless of what their will may state.
7
Q
Who is entitled to pension benefits if an employee dies ‘in service’?
A
The family members or dependants chosen by the trustee.
8
Q
How is the one-off payment for pension benefits calculated?
A
Based on the deceased employee’s salary.
9
Q
What is the role of a letter of wishes in relation to pension benefits?
A
It is not binding, but the deceased may have left one for the trustees.
10
Q
Do pension benefits belong to an employee during their lifetime?
A
No, they do not.
11
Q
Can PR’s distribute pension benefits according to the deceased’s will or through intestacy?
A
Only if stated in a scheme.
12
Q
What happens to a deceased’s equitable interest in a trust upon their death?
A
If it is a life interest, it will come to an end.
13
Q
How does trust property devolve upon the death of the deceased?
A
According to the terms of the trust, not the deceased’s will.
14
Q
In what order does a solicitor deal with the deceased’s assets?
A
- Property passing outside the will, 2. Property passing under the will, 3. Any property not disposed of in (1) and (2) passing on intestacy.
15
Q
What is a revocation clause in a will?
A
Revokes all prior wills so they have no effect.
16
Q
What is the purpose of the direction as to disposal of the body in a will?
A
It has no legal effect.
17
Q
What is the role of an executor in a will?
A
They deal with and administer the estate.
18
Q
What are ‘legacies’ in a will?
A
Gifts of personality and realty.
19
Q
What is a specific gift in a will?
A
A specific item that is distinguishable.
20
Q
What is a general gift in a will?
A
An item or items with a description.
21
Q
What is a demonstrative gift in a will?
A
General in nature but to be paid from a specific fund.
22
Q
What is a pecuniary gift in a will?
A
A gift of money.
23
Q
What is a residuary gift in a will?
A
All money and property left after debts and expenses have been paid.
24
Q
What are the requirements for a valid will?
A
Capacity, intention, and meeting the formalities for execution.
25
What are the criteria for capacity in making a will?
Being aged 18 or over, having mental capacity, and understanding the nature of their act, extent of their property, and moral claims they ought to consider.
26
Is a will valid if the testator loses capacity after giving instructions but before execution?
Yes, as long as they had capacity when they instructed their solicitor for the will.
27
What happens if a testator loses capacity before execution of the will?
The will can still be valid if the solicitor who prepared it appreciates that they are signing a will prepared in accordance with previous instructions.
28
What is a statutory will?
A will made on behalf of a testator who is not capable of giving instructions, with the court's permission and a solicitor appointed to execute it.
29
What does the court do to give effect to the will?
Affix the court seal.
30
What does the court consider when approving a draft will?
Testator's best interests.
31
What is the 'golden rule' for solicitors?
Confirm testator's capacity with medical report.
32
What should solicitors do if in doubt of testator's capacity?
Ask for a medical report and witness the will.
33
What should solicitors do to protect themselves in case of a capacity challenge?
Keep written records on file.
34
Who has the burden of proof in proving the validity of a will?
Person asserting the will is valid.
35
What is the presumption of capacity?
Testator is presumed to have mental capacity.
36
When does the burden of proof shift to the challenger?
When the will is rational and the testator showed no evidence of lacking capacity.
37
What must the testator have in terms of intention?
General and specific intention to make the will.
38
What must the testator know and approve at the time of execution?
The contents of the will.
39
What is the general rule regarding burden of proof?
Person asserting the will is valid must prove it.
40
What is the presumption of knowledge and approval?
Testator is presumed to have the requisite knowledge and approval.
41
What evidence may be required if the testator is blind, illiterate, or not signing personally?
Evidence to prove knowledge and approval.
42
What can be included in the will to prove knowledge and approval?
A statement that the contents were read out and approved.
43
What are suspicious circumstances?
Circumstances surrounding the drafting and execution of the will.
44
What is the burden of proof in relation to a will?
Executor must prove testator's knowledge and approval.
45
What are the grounds for challenging a will?
Force, fear, fraud, undue influence, and mistake.
46
What is the legal definition of undue influence?
Coercion or duress, not mere persuasion.
47
What must be proven in relation to undue influence?
Undue influence in relation to a will.
48
What happens if a claimant fails to substantiate their claim?
They will be penalized in costs.
49
What are the two types of mistake in relation to a will?
Actual mistake and misleading (legal meaning of words).
50
What are the formalities of execution for a will?
Must be in writing, signed, intended to give effect, and witnessed.
51
Is there a restriction on how a will should be written?
No, there is no restriction on how to write it or the type of wording.
52
What types of signatures are accepted for a will?
Any signature as long as the testator intends it to represent their name. Thumbprints can also be accepted.
53
Can someone sign a will on behalf of the testator?
Yes, if the testator directs them to sign on their behalf in their presence.
54
Is a signature alone enough to give effect to a will?
No, the testator must have the intention to sign and give effect to the will.
55
How many witnesses are required for a will?
Two witnesses.
56
What is the first stage of witnessing a will?
Testator's signature must be made or acknowledged in the presence of two witnesses.
57
What is the second stage of witnessing a will?
The witnesses must sign the will in the presence of the testator.
58
What does 'presence' mean in the context of witnessing a will?
It covers both mental and physical presence.
59
What is remote witnessing?
Witnessing signatures through video/visual conference.
60
What is the time frame for remote witnessing for wills?
Between 31/01/2020 and 31/01/2024.
61
Who does remote witnessing apply to?
Testators who are able to sign themselves.
62
Is witnessing pre-recorded videos allowed?
No, it is not permitted.
63
Can the witnesses and testator be at different locations?
Yes, they can be on a three-way link or two can be physically together with one at a remote location.
64
Are electronic signatures allowed for remote witnessing?
No, electronic signatures are not permitted.
65
What should the testator do after signing the will?
The will must be taken or posted to the witnesses.
66
When should the witnesses sign the will?
The witnesses must physically sign the will in the virtual presence of the testator.
67
What date should the testator use when dating the will?
The date of signature.
68
What date should the witnesses use when signing the will?
The date on which they are signing, which may be different from the date the testator signed and the date the other witness signs.
69
What happens if the testator dies before all signatures have been added?
The will cannot take effect.
70
What are privileged wills?
Wills made on actual military service or by a mariner or seaman at sea, which may be in any form.
71
What is the requirement for privileged wills?
The testator intends to dispose of their property after death.
72
Who has the burden of proof in asserting a will?
The person asserting the will.
73
Is proof required for most wills?
No, there is a presumption of due execution.
74
When does the presumption of due execution arise?
If the will includes an attestation clause reciting that the formalities have been complied with.
75
What is an attestation clause?
A clause in the will that states the formalities have been complied with.
76
Who has the burden of proving the will was not validly executed?
Anyone challenging the validity of the will.
77
What is an example of an attestation clause?
'Signed by the testatrix in our joint presence and then by us in hers'.
78
What is the burden of proof in most cases?
No proof is required due to the presumption of due execution.
79
What is an attestation clause?
A clause in a will that confirms the witnesses' presence.
80
What is an affidavit of due execution?
A sworn statement confirming the proper execution of a will.
81
What is an affidavit of handwriting evidence?
A sworn statement identifying the testator's signature.
82
What happens if a will does not have an attestation clause?
HMCTS requires an affidavit of due execution or witness statements.
83
What are the solicitor's duties in relation to will signing?
Inform testator of rules, check compliance, and duty of care to beneficiaries.
84
When do the intestacy rules apply?
When a person dies without a valid will or a will that does not dispose of the entire estate.
85
What are the three situations where intestacy rules apply?
No will, invalid will, or valid will that only addresses part of the estate.
86
What is the purpose of the intestacy rules?
To determine who is entitled to the property of a person who dies without a valid will.
87
What is the statutory trust in relation to intestacy?
A trust imposed by the intestacy rules over all the property of the deceased.
88
Who holds the property in the statutory trust?
The person(s) dealing with the estate, known as PRs.
89
What expenses and debts must be paid from the statutory trust?
Funeral, testamentary, administration expenses, and any debts of the deceased.
90
What is the purpose of an affidavit of due execution?
To confirm the proper execution of a will.
91
Who can provide an affidavit of due execution?
A witness or any person present during the execution of the will.
92
What is the purpose of an affidavit of handwriting evidence?
To identify the testator's signature in a will.
93
What happens if a will does not have an attestation clause?
HMCTS requires an affidavit of due execution or witness statements.
94
What are the solicitor's duties in relation to will signing?
Inform testator of rules, check compliance, and duty of care to beneficiaries.
95
When do the intestacy rules apply?
When a person dies without a valid will or a will that does not dispose of the entire estate.
96
What are the three situations where intestacy rules apply?
No will, invalid will, or valid will that only addresses part of the estate.
97
What is the purpose of the intestacy rules?
To determine who is entitled to the property of a person who dies without a valid will.
98
What is the statutory trust in relation to intestacy?
A trust imposed by the intestacy rules over all the property of the deceased.
99
Who holds the property in the statutory trust?
The person(s) dealing with the estate, known as PRs.
100
What expenses and debts must be paid from the statutory trust?
Funeral, testamentary, administration expenses, and any debts of the deceased.
101
What can PRs do to raise cash to pay debts and expenses?
Sell assets from the estate.
102
What is the 'residuary estate'?
The balance remaining after setting aside a fund for pecuniary legacies.
103
Are PRs required to sell the assets that form the residuary estate?
No, they have the power to sell but it's not mandatory.
104
What power do PRs have in relation to a beneficiary's share?
They can appropriate assets towards satisfaction of the share with the beneficiary's consent.
105
What is the meaning of spouse/civil partner?
Legally married, includes civil partners.
106
Are former spouses included in the definition of spouse?
No, once divorce is legally finalized they are excluded.
107
What is a void marriage?
One party is already married or underage, treated as if it never happened.
108
What is a voidable marriage?
One party entered into the marriage under duress or has a mental disability, valid until nullity decree is granted.
109
Is a party in a voidable marriage considered a spouse?
Yes, until the nullity decree is actually made.
110
What does the term 'issue' include?
All direct descendants of the deceased, including adopted children and those born to unmarried parents.
111
Are step children considered issue of the deceased?
No, unless they are adopted.
112
What does the spouse receive from the residuary estate?
The personal chattels absolutely.
113
What types of personal chattels are excluded from the spouse's share?
Money or securities for money, and property used solely or mainly for business purposes.
114
What is a 'statutory legacy'?
A set amount fixed by Parliament.
115
What is the current amount of the statutory legacy?
£270,000 for deaths on or after 6 February 2020.
116
What happens if the residuary estate is worth less than the statutory legacy?
The spouse receives it all.
117
What is the amount of the statutory legacy for deaths on or after 26 July 2023?
£322,000.
118
What happens if the residuary estate without chattels is worth less than the statutory legacy?
The spouse receives it all.
119
How is the rest of the residuary estate divided?
In half.
120
What happens to one half of the residuary estate?
It is held on trust for the spouse absolutely.
121
What happens to the other half of the residuary estate?
It is held for the issue on the statutory trusts.
122
How long must the intestate's spouse or civil partner survive in order to inherit?
28 days.
123
What happens if the intestate's spouse or civil partner dies within 28 days of the intestate?
The estate is distributed as if they have not survived the intestate.
124
What happens to an interest in a property held as beneficial joint tenant?
It passes by survivorship.
125
What happens to a family home held in the intestate's sole name or as tenants in common?
It forms part of the residuary estate and is subject to the intestacy rules.
126
Does the family home automatically pass to the surviving spouse/civil partner under the intestacy rules?
No.
127
What is the rate of interest payable on the statutory legacy?
The Bank of England rate at the date of death.
128
What is the rate of interest payable on the statutory legacy?
The Bank of England rate at the date of death.
129
What is the rate of interest payable on the statutory legacy?
The Bank of England rate at the date of death.
130
What is the rate of interest payable on the statutory legacy?
The Bank of England rate at the date of death.
131
What is the right of appropriation?
Surviving spouse can require transfer of family home.
132
What is the condition for exercising the right of appropriation?
Spouse must be living in the property.
133
What is 'equality money'?
Difference between property value and spouse's entitlement.
134
What is the time limit for notifying the PRs?
12 months from grant of representation.
135
What happens to the part of the estate not passing to the surviving spouse?
Passes to the intestate's issue on the statutory trusts.
136
Who are the primary beneficiaries under the statutory trusts?
Surviving children of the intestate.
137
Are remoter issue included as primary beneficiaries?
No, unless a child has died before the intestate.
138
What are the contingencies for the children's interests?
Attaining age 18, marrying, or forming a civil partnership.
139
What happens if a child fulfills the contingency at the intestate's death?
They take a vested interest.
140
What is the purpose of the statutory trusts?
To determine membership of the class of beneficiaries and the terms on which they take.
141
What is the residuary estate?
The part of the estate not specifically left to any beneficiary.
142
What is intestacy?
When someone dies without a valid will.
143
What is a PR?
Personal representative, someone responsible for administering the estate.
144
What is the family home?
The primary residence of the intestate and their family.
145
What is the grant of representation?
Legal document giving authority to administer the estate.
146
What is the surviving spouse's entitlement under intestacy rules?
The portion of the estate they are entitled to receive.
147
What is the purpose of paying 'equality money'?
To make up the difference between property value and entitlement.
148
What is the purpose of notifying the PRs?
To formally elect to exercise the right of appropriation.
149
What is the significance of the age of 18 in the statutory trusts?
Children's interests become vested once they reach this age.
150
What happens if a child of the intestate predeceases the intestate?
Children of the deceased child take their parent's share equally.
151
When do the grandchildren of the deceased child receive their parent's share?
Contingently upon attaining 18 or earlier marriage or civil partnership.
152
Are great grandchildren included in the distribution?
Only if their parent had also predeceased the intestate.
153
How is the estate distributed among the branches of the family?
Each branch receives an equal share.
154
What happens if children or issue survive the intestate but die without attaining a vested interest?
Their interest would normally fail and the estate would be distributed as if they had never existed.
155
What happens if children or issue die without attaining a vested interest but leaving issue?
They will be treated as having predeceased the intestate and can be replaced by their own issue.
156
What are the requirements for the issue to be substituted?
They must be living at the intestate's death.
157
What happens if there is a surviving spouse or civil partner but no issue?
The whole estate passes to the spouse or civil partner absolutely.
158
How long must the spouse or civil partner survive the intestate to inherit the whole estate?
28 days.
159
Are other relatives included if there is a surviving spouse or civil partner?
No, other relatives are not included.
160
What happens if there is no surviving spouse or civil partner?
The residuary estate is divided between the intestate's relatives.
161
Who are the intestate's relatives in the highest category?
Issue on the 'statutory trusts'.
162
What happens if there are no surviving issue?
The estate is divided equally between the parents.
163
What happens if there are no surviving parents?
The estate is divided between the brothers and sisters of the whole blood on the 'statutory trusts'.
164
What happens if there are no brothers and sisters of the whole blood?
The estate is divided between the brothers and sisters of the half blood on the 'statutory trusts'.
165
What happens if there are no brothers and sisters of the half blood?
The estate is divided equally between the grandparents.
166
What happens if there are no surviving grandparents?
The estate is divided between the uncles and aunts of the whole blood on the 'statutory trusts'.
167
What happens if there are no uncles and aunts of the whole blood?
The estate is divided between the uncles and aunts of the half blood on the 'statutory trusts'.
168
What happens if there are no uncles and aunts of the half blood?
The estate is distributed according to the rules of intestacy.
169
What is the Crown in the context of intestacy?
The government
170
What is the Duchy of Lancaster in the context of intestacy?
An organization that may receive the estate if the intestate lived in Lancashire
171
What is the Duchy of Cornwall in the context of intestacy?
An organization that may receive the estate if the intestate lived in Cornwall
172
What is bona vacantia?
Vacant or ownerless goods
173
Who can take property that falls under bona vacantia?
The Crown, Duchy of Lancaster, or Duchy of Cornwall
174
What happens if the intestate is not survived by any relatives provided for under the intestacy rules?
The estate passes bona vacantia
175
What is the discretion of the Crown, Duchy of Lancaster, and Duchy of Cornwall in regards to the estate?
They can provide for dependents of the intestate or other persons for whom the intestate might reasonably have been expected to make provision
176
How are adopted children treated for intestacy purposes?
As the children of their adoptive parents and not of their natural parents
177
What happens to the contingent interest of an adopted person in the estate of a deceased natural parent?
It is preserved
178
What is the exception to the rule that adopted children are treated as the child of their adoptive parents?
The exception is limited to parents
179
What is the effect of the exception for adopted children on their entitlement to the estate of other relatives?
They will still lose a contingent entitlement to the estate of other relatives
180
What are the statutory trusts?
Each category other than parents and grandparents takes 'on the statutory trusts'
181
What does it mean for members of the specified class categories to take the estate equally?
They share the estate equally
182
Who can take the share of a deceased relative under the statutory trusts?
The issue of a deceased relative
183
Who may inherit on intestacy if their parents died before the intestate?
Relatives not mentioned in the intestacy rules, such as nephews, nieces, and cousins
184
What are illegitimate children?
Children born to parents who are not married
185
Do illegitimate children have any specific rights in intestacy?
The notes do not provide information on the specific rights of illegitimate children in intestacy
186
Are illegitimate children treated differently in intestacy compared to legitimate children?
The notes do not provide information on how illegitimate children are treated in intestacy
187
Are there any exceptions or considerations for illegitimate children in intestacy?
The notes do not provide information on any exceptions or considerations for illegitimate children in intestacy
188
What are intestacy rules?
Rules applied regardless of parents' marital status.
189
What is the presumption regarding an illegitimate child's father?
Presumed not survived by father or relatives, unless proven otherwise.
190
When does the presumption not apply?
When the father is named on the child's birth certificate.
## Footnote
While the historical presumption excluded illegitimate children from automatically inheriting from the father, current law in England and Wales now allows illegitimate children the same inheritance rights as legitimate ones, provided paternity is proven or acknowledged.
191
What is the Human Fertilisation and Embryology Act 2008?
Legislation regarding legal parenthood.
192
Who is considered the child's mother under Section 33?
The woman who gave birth.
193
Who is considered the legal father under Section 35?
Husband of the mother in a heterosexual marriage, unless he did not consent to treatment.
194
Who is considered the child's other legal parent under Section 42?
Mother's wife or civil partner in a same-sex marriage or civil partnership.
195
What can a mother do under Section 36?
Give notice that her male cohabitant is the legal father.
196
What does Section 43 mirror?
Section 36 in relation to same-sex couples.
197
What does it mean for a person to be treated as a parent under the Act?
Entitled to the parent's estate and considered 'issue' under intestacy rules.
198
What are commissioning parents in surrogacy?
Couple having a child through surrogacy.
199
What can commissioning parents apply for?
Parental order that confers legal parenthood exclusively to them.
200
How is the child treated in surrogacy?
Treated as a child of the commissioning couple for all purposes.
