Topic 2 - Will drafting and Interpretation

Question 1

What is the purpose of the commencement clause in a will?

Answer 1

To identify the testator by stating their full name and address

The testator’s occupation may also be added.

Question 2

What does a revocation clause do in a will?

Answer 2

It revokes all former wills and testamentary dispositions, ensuring only one valid will exists at any time

A will is valid without a revocation clause, but including one avoids uncertainty.

Question 3

True or False: A testator’s burial and funeral wishes are legally binding on the personal representative.

Answer 3

False

These wishes are typically followed where possible but are not legally binding.

Question 4

What is the role of a personal representative (PR) in the context of a will?

Answer 4

To collect the deceased’s assets, administer the estate, pay debts, and distribute assets to beneficiaries

The PR is referred to as an executor if appointed by will.

Question 5

What is the minimum number of executors required in a will?

Answer 5

1

It is advisable to appoint at least two executors.

Question 6

Fill in the blank: An executor who is ______ can act but may be unable to perform all PR functions.

Answer 6

Bankrupt

Question 7

What happens to the appointment of a spouse or civil partner as executor if the testator later divorces?

Answer 7

It becomes ineffective

This is according to s18A / C Wills Act 1837.

Question 8

What is the maximum number of executors that can apply for a grant of representation?

Answer 8

4

Question 9

What is required for the appointment of an executor to be considered valid?

Answer 9

It must be clear and unambiguous

Ambiguity may render the appointment void.

Question 10

What should a testator consider when appointing guardians for their children?

Answer 10

• Consent from the proposed guardian
• Financial provision for the guardian
• Effectiveness of joint guardians working together

Question 11

What is the primary duty of an executor?

Answer 11

To administer the estate

Question 12

What is the role of a trustee following the administration of an estate?

Answer 12

To manage any trusts that continue to exist

This role continues for as long as the trust is in existence.

Question 13

True or False: Executors and trustees are the beneficial owners of the assets they manage.

Answer 13

False

Executors and trustees are responsible for managing assets but do not own them.

Question 14

What does an attestation clause in a will describe?

Answer 14

The circumstances under which the will was signed

Question 15

What is the significance of using clear, concise, and unambiguous wording in a will?

Answer 15

To avoid confusion and ensure the testator’s intentions are accurately reflected

Question 16

What is the common practice regarding punctuation in wills?

Answer 16

Wills are traditionally drafted without punctuation

Question 17

What is the function of numbered paragraphs and sub-clauses in a will?

Answer 17

To make the document easier to read and cross-reference

Question 18

Fill in the blank: A testator may include _______ in their will to express their funeral wishes.

Answer 18

Funeral instructions

Question 19

What does a trust corporation do in the context of a will?

Answer 19

Carries out trustee and personal representative roles

Trust corporations have a separate legal personality.

Question 20

What is a common practice when appointing executors and trustees in a will?

Answer 20

They are often appointed by the same clause and frequently the same individuals

Question 21

What is the purpose of express administrative powers in a will?

Answer 21

To provide executors and trustees with the necessary authority to perform their roles

Question 22

What is the basic structure of a will?

Answer 22

• Commencement
• Revocation
• Burial / Funeral wishes
• Appointment of executors & trustees
• Appointment of guardians
• Specific gifts
• General gifts
• Pecuniary gifts
• Residuary gift
• Administrative clauses
• Date & Attestation

This structure helps in organizing the will for clarity and legal compliance.

Question 23

What are dispositive clauses in a will?

Answer 23

Dispositive clauses are directives from a testator on who inherits their assets, what each should receive, and under what terms.

The terms ‘legacy’ and ‘devise’ describe gifts of property, with ‘legacy’ usually referring to personal property and ‘devise’ to real property.

Question 24

What is a specific gift in the context of a will?

Answer 24

A specific gift is a particular item owned by the deceased at the date of death, clearly identified to avoid uncertainty.

An example is: “I GIVE to [ ] my painting of Epsom race course framed in red and gold absolutely.”

Question 25

What happens if a specific gift is not owned by the testator at the time of death?

Answer 25

The gift adeems (fails to take effect) and the beneficiary receives nothing.

Question 26

What is the difference between a specific gift and a general gift?

Answer 26

A specific gift refers to a particular item, while a general gift is not distinguished from similar property types.

Question 27

What is a pecuniary gift?

Answer 27

A pecuniary gift is a gift of money, which can be either specific or general.

Question 28

What is a residuary gift?

Answer 28

A residuary gift is a gift of all property capable of passing by the will that has not already been disposed of.

Question 29

What is the statutory definition of chattels according to the Administration of Estates Act 1925?

Answer 29

Chattels are defined as all tangible movable property, excluding money or securities for money, business-use assets, and investment assets.

Question 30

What is a demonstrative gift in a will?

Answer 30

A demonstrative gift is a type of general legacy directed to be paid from a specified fund.

Question 31

What should be included in a clause for specific gifts of land?

Answer 31

The property must be identifiable, and the clause should state what happens if the property is no longer owned by the testator.

Question 32

True or False: A general legacy usually fails if the specific property is not part of the estate at death.

Answer 32

False. ## Footnote The personal representatives would have to buy the specified property.

Question 33

What is the purpose of including substitution clauses in a will?

Answer 33

Substitution clauses are included to take effect if the primary gift fails.

Question 34

Fill in the blank: A _______ legacy is a gift of property which is not distinguished from property of a similar type.

Answer 34

General

Question 35

What is the importance of drafting clear and concise wording in wills?

Answer 35

Clear, concise, and unambiguous wording prevents legal disputes and ensures the testator's intentions are carried out.

Question 36

What is a collection gift in a will?

Answer 36

A collection gift is a gift of a group of items rather than a single item, which must be clearly identified to avoid uncertainty.

Question 37

What should a solicitor check regarding specific gifts?

Answer 37

The solicitor should check the testator's intention if the original item no longer exists and consider alternative substitute gifts.

Question 38

What happens if there is a partial intestacy due to failed gifts?

Answer 38

It creates additional administrative complications and may result in a distribution not intended by the testator.

Question 39

What is an ultimate gift over clause?

Answer 39

An ultimate gift over clause specifies who the estate should pass to if all other gifts fail.

Question 40

What should the wording of a will be like?

Answer 40

Clear, concise, and unambiguous ## Footnote Avoid colloquial and technical language unless needed for precision.

Question 41

How are wills traditionally drafted regarding punctuation?

Answer 41

Without punctuation

Question 42

What is a common practice when drafting clauses in a will?

Answer 42

Capitalising the words which explain the purpose of the clause, e.g., I GIVE; I APPOINT.

Question 43

What aids can be used in drafting a will?

Answer 43

Precedents

Question 44

What is the general rule about the date from which a will speaks regarding property?

Answer 44

The will speaks from the date of the testator’s death unless a contrary intention is shown.

Question 45

What is a contrary intention in the context of a will?

Answer 45

Demonstrated by words like ‘my’, ‘now’, or ‘at present’ when describing a gift.

Question 46

What happens to a specific gift if the testator no longer owns the item at their death?

Answer 46

The gift will adeem.

Question 47

What is the effect of a gift of a collection in a will?

Answer 47

The will speaks from the date of death, meaning items included in the collection at that time.

Question 48

When should the class of beneficiaries be determined according to a will?

Answer 48

Expressly stated by the testator.

Question 49

What are relieving provisions in a will?

Answer 49

Provisions that deal with who bears the burden of taxes, charges, expenses, and costs.

Question 50

What is the standard practice regarding inheritance tax in a will?

Answer 50

Legacies are drafted as free from tax, with the residuary estate bearing the burden.

Question 51

What happens to expenses incurred since the date of death for specific beneficiaries?

Answer 51

They bear the burden of the costs unless stated otherwise.

Question 52

What does section 35 of the Administration of Estates Act 1925 stipulate?

Answer 52

Unless the will shows a contrary intention, the asset charged bears liability for payment.

Question 53

What is the presumption under the commorientes rule?

Answer 53

The eldest is presumed to have died first.

Question 54

What is a survivorship clause in a will?

Answer 54

States that a beneficiary must survive the testator by a specified period to take a gift.

Question 55

What is the typical survivorship period used in wills?

Answer 55

28 or 30 days.

Question 56

What should be considered when drafting gifts to issue?

Answer 56

* Individual vs. class gift * Vested vs. contingent gift * What happens if a beneficiary pre-deceases

Question 57

How are class gifts defined?

Answer 57

Gifts given to a group of beneficiaries meeting a general description.

Question 58

When does a class of beneficiaries close?

Answer 58

When any one member of the class first becomes entitled in possession.

Question 59

What is a vested interest in the context of a will?

Answer 59

A gift that is given outright and absolutely without conditions.

Question 60

What is the significance of stating the date of death in a will?

Answer 60

It creates certainty about which beneficiaries should inherit based on the date the testator died. ## Footnote This helps avoid complexities in the application of rules regarding inheritance.

Question 61

Define vested interests in the context of wills.

Answer 61

A gift vests if it is given outright and absolutely without conditions. ## Footnote Example: 'I give £1,000 absolutely to each of my children alive at the date of my death.'

Question 62

What happens to a vested interest if a minor with a vested interest dies before reaching 18?

Answer 62

The gift belongs to them and will pass into their own estate. ## Footnote However, it is held on trust until they reach 18.

Question 63

What is a contingent interest?

Answer 63

A contingent gift requires a beneficiary to satisfy a condition before they inherit. ## Footnote Common conditions include surviving the testator for a specified time or reaching a certain age.

Question 64

What is the effect of a beneficiary pre-deceasing the testator?

Answer 64

The gift to them in the will fails (lapses). ## Footnote For example, a gift to a niece lapses if she dies before the testator.

Question 65

What are substitutional gifts?

Answer 65

Gifts specified in a will to take effect if the original beneficiary pre-deceases the testator. ## Footnote Example: 'I give absolutely to my niece X the sum of £10,000 but if she has died before me to her daughter Y.'

Question 66

What is Section 33 of the Wills Act 1837?

Answer 66

It prevents a gift from lapsing if the intended beneficiary dies before the testator, leaving issue who are living at the testator’s death. ## Footnote It applies to gifts to a child or remoter descendant.

Question 67

True or False: Section 33 applies to gifts to siblings of the testator.

Answer 67

False

Question 68

What should be included in a will when leaving a gift to a charity?

Answer 68

The full name and address of the organization and consideration of its registered charity status. ## Footnote This avoids doubt over the identity of the intended beneficiary.

Question 69

What happens if a charity ceases to exist at the time of the testator's death?

Answer 69

The executors should pay the legacy to another charitable body with similar objects. ## Footnote This is often specified in the will.

Question 70

What is required for an unexecuted document to be incorporated into a will?

Answer 70

The document must exist at the time of execution, be referred to as existing, and be clearly identified. ## Footnote Example: A list of beneficiaries must be present at the time the will is made.

Question 71

Fill in the blank: Letters of wishes serve as _______ for trustees but are not legally binding.

Answer 71

Guidance

Question 72

How can STEP provisions be incorporated into a will?

Answer 72

By reference, without needing to copy each provision in full. ## Footnote Example: 'The standard provisions and all of the special provisions of the Society of Trust and Estate Practitioners shall apply.'

Question 73

What is the risk of incorporating unexecuted documents into a will?

Answer 73

Failure to satisfy the conditions for incorporation or loss of the document before death. ## Footnote It is safer to include such lists or inventories directly in the will.