Will Drafting - Non-Dispositive Clauses Flashcards
What is the purpose of the commencement clause in a will?
To identify the testator by full name, address, and aliases, if any.
Why is an express revocation clause included in a will?
To revoke all earlier wills and codicils and avoid uncertainty or multiple valid wills.
Are burial and funeral wishes in a will legally binding?
No. They are not binding on the personal representatives but are usually followed if possible.
What is the role of a personal representative (PR)?
To collect the deceased’s assets, pay debts and administration expenses, and distribute the estate
Who is an executor?
A PR appointed by will, whose authority derives from the will itself.
What happens if no executor is appointed in the will?
The court appoints an administrator
Who can be appointed as an executor?
Any adult with mental capacity. A bankrupt may act, but this is unwise.
What is the minimum and maximum number of executors?
Minimum = 1. Maximum = 4 may apply for the grant.
What happens if more than four executors are named?
Only four can act; power is ‘reserved’ to others who may apply if a vacancy arises.
Can an executor be appointed on a qualified basis?
Yes, e.g., to deal only with certain assets, or for a limited time.
What must be ensured if the executor’s appointment is qualified?
That all assets in the will are covered by at least one executor.
Can the same person be both executor and trustee?
Yes. This is common and simplifies administration.
Why appoint at least two trustees if a trust may arise?
At least two are required for a valid trust of land or where minors are involved.
Can a partnership be appointed executor?
No. But all profit-sharing partners at the date of death may be appointed.
Can LLPs and trust corporations be appointed executors?
Yes. They have legal personality and can be appointed directly.
What is the difference between executors and trustees?
Executors deal with estate administration; trustees manage any continuing trust.
What happens if a will contains no express administrative powers?
Only default statutory and common law powers apply.
Can express powers override default legal powers?
Yes. Express provisions take precedence and may expand, restrict, or re-state default powers.
What is the purpose of the attestation clause?
To confirm compliance with the execution requirements under s 9 Wills Act
