Will Drafting: Incorporation of Documents into a Will Flashcards
(12 cards)
Which of the following is NOT a requirement for incorporating a document into a will?
A. The document must be signed by the testator
B. The document must be in existence at the time of the will’s execution
C. The will must refer to the document as being in existence
D. The document must be clearly identified in the will
A. The document must be signed by the testator
Explanation: For incorporation by reference, the document does not need to be signed by the testator. It only needs to (1) exist at the time of execution, (2) be referred to as existing, and (3) be clearly identified.
What is the legal effect of a document validly incorporated into a will?
A. It remains private and non-binding
B. It can only guide the executors
C. It must still be executed separately under s.9 Wills Act 1837
D. It becomes part of the will and is legally binding
D. It becomes part of the will and is legally binding
Explanation: A validly incorporated document becomes part of the will for legal purposes and is admitted to probate, even if it does not comply with s.9 WA 1837.
Why should a solicitor avoid relying on incorporation of a separate list of gifts?
A. It is not enforceable
B. It is expensive to include
C. Courts never accept incorporated documents
D. The document may not exist or be lost
D. The document may not exist or be lost
Explanation: Incorporation is risky because if the document cannot be found or the criteria are not met, the gift may fail.
What is the main purpose of incorporating STEP provisions into a will?
A. To allow charities to claim tax relief
B. To remove the need for executors
C. To apply standard administrative powers
D. To include all gifts to unincorporated associations
C. To apply standard administrative powers
Explanation: STEP provisions contain standard clauses for executors and trustees. Incorporating them by reference streamlines drafting.
Testator Sam’s will says, “I leave my art collection to the people named in the list I will write before my death.” What is the legal effect of this clause?
A. The clause is valid; the list will be included when made
B. The clause fails because the list does not yet exist
C. The clause is valid if Sam signs the list
D. The clause is valid if a solicitor prepares the list
B. The clause fails because the list does not yet exist
Explanation: The list must exist at the time of execution and be referred to as existing. A future document cannot be incorporated.
A clause in Fiona’s will states: “I give my jewellery to those named in the typed list in the top drawer of my desk.” The list exists and can be located. What is the legal position?
A. The clause fails unless the list is signed
B. The clause fails unless the list is witnessed
C. The list is incorporated if it meets the criteria
D. The list must be kept secret to be valid
C. The list is incorporated if it meets the criteria
Explanation: If the document existed, was referred to as existing, and is clearly identifiable, it can be incorporated even without being signed or witnessed.
Why is a letter of wishes not incorporated into a will?
A. It is always signed separately
B. It is not intended to have legal effect
C. It is always attached to the will
D. It must be approved by STEP
B. It is not intended to have legal effect
Explanation: Letters of wishes are non-binding and not meant to be part of the will. They guide trustees, not bind them.
Which statement about documents incorporated into a will is TRUE?
A. They can remain private after probate
B. They must be handwritten
C. They must be drafted by a solicitor
D. They must be admissible to probate with the will
D. They must be admissible to probate with the will
Explanation: Any document incorporated into a will is treated as part of it and will be publicly available with the will at probate.
Testator A includes a clause: “I give my jewellery to the persons listed in the envelope marked ‘Beneficiaries’, which is currently stored in my study safe.” The list is found after death. Which is most accurate?
A. The list can be incorporated if it was in existence and identifiable
B. The list is private and not submitted to probate
C. The list cannot be incorporated unless it is signed
D. The clause is effective only if the envelope was sealed
A. The list can be incorporated if it was in existence and identifiable
Explanation: Provided the list existed at execution, was referred to as existing, and is clearly identified, it is validly incorporated.
A will says, “I leave £10,000 to the organisation known as SmileHelp, or its successor charity if it no longer exists.” What legal principle applies if SmileHelp is wound up before the testator’s death?
A. The gift fails unless a new will is made
B. The gift is void under s.33 Wills Act 1837
C. The gift passes under the doctrine of cy-près
D. The gift must be divided among the charity’s staff
C. The gift passes under the doctrine of cy-près
Explanation: Under the Charities Act 2011, if a charitable gift cannot be made as stated, it may pass to a similar charity under the cy-près doctrine.
A testator includes a clause: “I incorporate the STEP 2nd Edition standard and special provisions in full.” What is the effect of this clause?
A. It is void because STEP is not a legal authority
B. The STEP provisions become binding
C. The STEP provisions must be handwritten
D. The will becomes invalid unless a copy is attached
B. The STEP provisions become binding
Explanation: Reference to the STEP provisions is sufficient to incorporate them into the will. They apply unless inconsistent with the express terms of the will.
A will includes: “I give £5,000 to the Local Running Club (currently operating out of 24 Mill Street).” The club is unincorporated. What issue arises?
A. The gift must be paid into court
B. The gift is void unless the club is a charity
C. It must be clear who may give a valid receipt
D. The gift cannot be made in a will
C. It must be clear who may give a valid receipt
Explanation: When gifting to unincorporated associations, the will should state who can give a valid receipt (e.g. treasurer), as such bodies are not legal entities.
