Legal Drafting (Wills) Flashcards
(20 cards)
If someone has two names, where should they be included when drafting a will?
It is important that we refer to both names the client uses so that she is idenfied correctly in three locations:
(a) Front Cover
“WILL of
AISLING PETROV
(also known as AISLING DOYLE)”
(b) **Opening clause **
“I am AISLING PETROV, also known as AISLING DOYLE of…”
(c) Signature Section
” Signed by AISLING PETROV, also known as ……………………………… AISLING DOYLE in the presence of both of
us and then by us in her presence”
How to identify a person when they are mentioned the first time in a will?
When a person is referred to in the first instance, identify them with a surname and preferably an address.
For example…
“References in this will to my husband must be read as references to ALEXANDER PETROV of 12 Cathedral Crescent, Winchester, Hampshire SO22 4RD.”
How should a guarddianship clause be written in a will?
The guardianship clause should be expressed to only take effect afer both parents have died.
For example…
“If the father of my daughters CLODAGH DOYLE and AOIFE DOYLE dies before me I appoint my husband as the guardian of any of my said daughters who are under 18 at my death.”
If the wish of a specific item (e.g. house) is the same as the residuary gift, how should it be drafted?
If the client’s wishes are the same as her wishes with respect to the residuary estate, it is simplest to state that the provision later in the Will dealing with the distribution of the residuary estate will also apply when a condition is satisfied - for example, upon the death of the life tenant..
An example: “Subject to Clause 6.3 and Clause 6.4, my Trustees must hold the Property Fund on the trusts that apply to the Trust Fund”
You are asked to draft a deed of variation.
Explain what this is and the key sections.
A deed of variation is used where the original beneficiary would like the transfer to be treated for IHT and/or CGT purposes as having been made by the deceased and not themselves.
Include…..
PARTIES
(1) ….. (Current Beneficiary)
(2) ……. (New Beneficiary)
(3) ……. (Executors)
BACKGROUND
[Set out who died, who inherited and the wish th vary entitlment]
OPERATIVE TERMS
Variation
Specify what the variation is.
For examole “By this deed the Current Beneficiary is varying her entitlement to the Residuary Estate under the Will so that the Will shall have effect as if it had included a legacy of £150,000 in favour of the New Beneficiary absolutely free of inheritance tax and the remainder of the Residuary Estate had been given to the Current Beneficiary.
Statement
“The provisions of section 142(1) of the Inheritance Tax Act 1984 shall apply to the variation made by this deed.”
EXECUTION
Execute with a witness for each party.
You are asked to draft a deed of variation.
What statement is inserted if you wish for the IHT impact to apply?
he provisions of section 142(1) of the Inheritance Tax Act 1984 shall apply to the variation made by this deed.
How do you draft a general legacy?
Use the example of 50 Shares in Tesco.
This is where the gift suceeds even if not owned at the date of death. Don’t include words such as ‘my.’
““I give 50 shares in Tesco to X”
How do you draft a specific legacy?
Use the example of Shares in Tesco.
A gift of a particular asset owned by the deceased at death. Use ‘my’ to indicate the items owned at death.
““I give all my shares in Tesco to X”
You are drafting a will or codicil, the testator is blind and signing with a mark.
What attestation clause should be used?
Signed by [TESTATOR NAME] who is blind by her mark in the presence of both of us and then by us in her presence, after this document had been read over by [NAME OF SOLICITOR WHO READ DOCUMENT TO TESTATRIX] when the Testatrix seemed thoroughly to understand and approve the contents
Think:
(i) Signed by mark
(ii) Read over by solicitor
(iii) Understood and approved contents
You are drafting a will or codicil, how should you refer to gifts relating to digits such as money?
It is good practice to refer to gifts in words and digits so there is no room for confusion
You are drafting a codicil.
What must you do for each clause?
Remember to re-number the clauses
For example…
“Clauses 5 and 6 of my will shall be renumbered Clauses 7 and 8 respectively.”
You are drafting a codicil.
Once you have added the amendments, what must you do?
It is important to confirm the rest of the will.
“I confirm the rest of my will.”
You are drafting a will.
Draft a residuary clause
I give my Residuary Estate to [Name of Beneficiary] of [Address].
If the above provisions for the distribution of my Residuary Estate fail , then the following shall apply:
I give my Residuary Estate to [Name of SubstituteBeneficiary] of [Address].
You are drafting a will.
What attestation clause should be used if the testator is blind.
Signed by [Name of Testator] by [his OR her mark] as a testamentary document in the presence of both of us and then by us in [his OR her] presence,
…
after this document had been read over by [Name of person who read the document] to the testator (who is blind)
…
when the testator seemed thoroughly to understand and approve the contents.
You are drafting a will.
What attestation clause should be used if the testator is unable to physically sign.
Signed by [Name of person signing on Testator behalf] in [his OR her] own name OR with the name of the testator] on behalf of [Name of Testator] in the presence of both of us, then by us in [his OR her] presence and at [his OR her] direction
….
After this document had been read over by [Name of person who read the document] to the testator (who is physically incapable of signing), when the testator seemed thoroughly to understand and approve the contents.
You are drafting a will.
What attestation clause should be used if the testator is illiterate.
Signed by [Name of Testator] [by [his OR her] mark] in the presence of both of us, then by us in [his OR her] presence after this document had been read over by [Name of person who read the document] to the testator when the testator seemed thoroughly to understand and approve the contents.
You are drafting a deed of variation.
What parties need to be included?
[Name of Current Beneficiary] of [Address] (Current Beneficiary)
[Name of New Beneficiary] of [Address] (New Beneficiary)
[Name of Executor/Administrator] of [Address] (Executor)
You are drafting a deed of variation.
How should you set out the background to the variation?
[Deceased] (Deceased) died on [Date] leaving a will listed and other relevant documents in Schedule 1
Immediately before his death, the Deceased owned assets described in Schedule [X]] (Asset).
Under the will, the Current Beneficiary is entitled to the Asset .
The Current Beneficiary wishes to vary his entitlement to the Asset as follows.
You are drafting a deed of variation.
How should you set out the variation itself?
By this deed the Current Beneficiary is varying his entitlement to the Asset under the Will so that
…
the Will shall have effect as if £X of the Asset had been given to the New Beneficiary absolutely free of inheritance tax
You are drafting a deed of variation.
What must you ensure in relation to inheritance tax?
Include the following to allows a retrospective tax effect, treating the gift as if it was made by the will, not a PET by the current beneficiary
“The provisions of section 142(1) of the Inheritance Tax Act 1984 shall apply to the variations made by this deed.”
