Will Drafting

Question 1

What should be included in the opening of a will?

Answer 1

Main purpose is to identify testator and mature of document.

Date

If intends to marry in near future, should state this and want to not be revoked.

Question 2

What is the min and max number of executors on a will?

Answer 2

Cannot be more than 4, as only 4 can apply for grant of probate

Min is 1, and this will be for a smal estate, where executor is the sole or main beneficiary.

Question 3

Who can the testator appoint as an executor?

Answer 3

Individuals who are not professionals (family and friends)

Solicitors or other professionals (or LLP firm)

Banks or trust corporations

Question 4

What are the charging provisions within the will?

Answer 4

Executor or trustee are fiduciary,and are unable to profit fm position unless authorised.

Professional executor or trustee will wnat to charge fees.

TA s 29 allows payment for reasonable remuneration to a trustee for time spent and work done, BUT ONLU if trustee is either a trust corporation or a trustee acting in a professional capacity

Question 5

Should guardians be included in a will?

Answer 5

Where the testator has infant children, they should include a clause appointing gaudeians to look afte children after death of both parents.

Question 6

What happens if the testator does not own the specific asset of a specific legacy at death?

Answer 6

Gift fails, deems. Gets nothing in place., unless will specifically provides for substitution.

Question 7

Who has the burden of inheritance tax?

Answer 7

If deceased estate is large enough, IHT will be payable. Default position is that the IHT on individual legacies is paid out of the RESIDUARY estate.

However, the will can displace this general rule.

Question 8

Who is liable for costs of a specific gift? Such as transport or packaging?

Answer 8

Unless statement otherwise, the beneficiary will bear these costs.

Question 9

Who have the burden to pay the charges (mortgage) of a house?

Answer 9

If the property is mortgaged, the mortgage debt falls on the beneficiary who receives the charged property, UNLESS the will states otherwise.

If the will states that they have it “free of mortgage”, then this will cast the burden to the residue estate.

Question 10

How does one avoid partial intestacy?

Answer 10

If a gift or residue fails, the property will pass under intestacy rules.

Preferable to include substitution Al gifts to cover this in case the primary beneficiary is void (dead etc).

Also worth considering a long stop beneficiary to inherit if all the intended arrangements fail - this is often a charity, as this gift has little change of failing.

Wise to OMIT names and specific shares, to reduce the chance of it failing.

Question 11

What is a survivorship clause?

Answer 11

If a beneficiary dies at same time as testator (same accident etc), then the testators property would pass accordance with the beneficiaries will - this may result in results that the TESTATOR did nt want.

There is teh burden and expense of property of 2 estates as well

Therefore survivorship clause means that if you mention someone else, if the beneficiary does not live.

Eg. I give 50,000 to my son James, and if he dies before 28 days, then to my sister Rose.

Question 12

What powers can be included in all wills?

Answer 12

Power to charge

Power to extend power to appropriate assets without consent of legatee

Power to insure assets - insure assets against all risks.

Power to accept receipts from or on behalf of minors

Self dealing

Question 13

What powers should be included for trustees in the will?

Answer 13

Power to appropriate assets

Power to invest

Power to purchase land

Power to sell personalty

Power to use income for maintenance and beneficiaries

Power to use capital for advancement of beneficiaries

Control of trustees by beneficiaries

Trusts of land (special powers to beneficiary under trust of land who ahs interest in possession) - duty to consult beneficiaries and rights of occupation

Power to carry on testators business

Question 14

What is an attestation clause?

Answer 14

Al wills should include, which recites that the formalities required have been complied with.

Question 15

What are professional conduct issues for solicitors drafting wills?

Answer 15

Taking instructions from third party - best interest of client

Legacies to solicitor drafting wills - act with integrity and honesty . Do not act if there is an own interest conduct. Can take a gift, unless it is of significant value in relation to the clients size of estate.

Appointment of solicitor as executor: must not exploit clients back of knowledge, own interest client.

Question 16

What do you write to open a will?

Answer 16

This is the Last Will and Testament of me, ____, of __address____, which i make this day _____.

I revoke all former wills, codicils and testamentary dispositions.

I wish my body to be ____

I appoint ____ of ___ to be my executor

(if intending to marry in near future, they should state that the will is made in the expectation of that marriage and they do not want the marriage to revoke the will)

Question 17

What should be written for a revocation clause?

Answer 17

i revoke all former wills, codicils and testamentary dispositions.

Question 18

What should you include In a Will for appointments of executors/trustees?

Answer 18

If professional, say the FIRM and not the individual. Potential charging for professional executors - charging provision.

Acting in a PROFESSIONAL capacity.

Guardians: if infant children.

Question 19

What do you include in a will for non-residuary gifts?

Answer 19

Substitution clause: word it in a specific way, or give it to someone else

Question 20

How do you word the burden of tax and charges in a will?

Answer 20

I give __house___ subject to tax.
(This means the IHT burden and the mortgage)

if “i give house to ___, then the residence pays the IHT.

Have to say “free of mortgage” and “free of tax” just to make sure.

Costs of the gift - usually falls n the beneficiary, UNLESS words are included.

Question 21

How do you word the gift of residue in a will?

Answer 21

i give al the rest of my property AFTER DEDUCTING DEBTS AND LEGACIES to ____.

Or

subject to the payment of my debts, funeral and testamentary expenses and legacies, i give all my estate to _____

If you want your residue as a trust:
“i give all the rest of my estate not otherwise disposed of my by will to my Trustees upon trust to pay my debts, funeral and testamentary expenses and legacies, and to old the balance (residuary estate) on trust for such of my children as attain the age of ___ and if more than one , in equal shares absolutely.

To avoid partial intestacy:

Don’t specify specific people. “And if more than one, in equal shares absolutely”

Question 22

How do you word the survivorship clause in a will?

Answer 22

”i give ____ to my son ___ if he survives by 28 days, but if he does not so survive me, then to my sister ____.

Or,

“any beneficiary who does not survive me by 28 days shal be treated as having died before me”

Question 23

How do you word an attestation clause?

Answer 23

”signed by me []
in our joint presence and then by us in [his/hers]”

Question 24

What do you include in administrative provisions in a will?

Answer 24

Power to charge

Power for maintenance of beneficiaries