Wills 1 Flashcards
(14 cards)
Job of the executors
Gather all the deceased’s assets, pay the deceased’s debts and any inheritance tax and ten distribute the remaining assets to whoever is entitled under the will.
Capacity
Must be 18 or over and have mental capacity.
Banks v Goodfellow - Ts must understand the nature of their act and its broad effects, the extent of their property and the moral claims they ought to consider.
As a general rule the T must have capacity at the time the will is executed.
An exception is as long as they have capacity at the time they make instructions and then later understand they are signing in accordance with their previous instructions.
The golden rule
If a solicitor drafting a will is in doubt about a testator’s capacity, they should ask a medical practitioner to provide a written report that the T has testamentary capacity, and also ask that the doctor witnesses the will.
Presumption of capacity
There is a presumption of capacity as long as the will is rational on the face of it and the testator showed no evidence of mental confusion before making the will.
Intention
Testator must have general and specific intention. They must intend to make a will, and also intend to make the particular will they are now executing.
T must know and approve the contents of the will at the time of execution. The exception in Parker v Felgate applies.
General rule of intention
Presumption of knowledge and approval.
Exceptions occur when T is blind/illiterate/not signing personally and in these cases HMCTS will require evidence of intention before issuing a grant of probate.
Another exception is suspicious circumstances - an executor or person asserting the will must remove the suspicion by proving that the T did know and approve the contents.
Formalities of execution
S9 Wills Act 1837, in writing signed by the T or by someone in his presence at his direction, signature intended to give effect to the will, T’s signature is witnessed by 2 people at the same time and each witness signs the will in the presence of the testator.
Remote witnessing
Was allowed in 2020 to 2024 during COVID to allow for witnesses to be remote. However, only applied where the T was signing the will themself. Cannot have someone do it at their direction by video conference.
Privileged wills
A will made on military service or a seaman at sea may be in any form, even merely an oral statement as long as he intended to dispose of his property as stated after his death.
Attestation clause
The presumption of due execution arises if there is an attestation clause stating that the formalities in s9 Wills Act 1837 were complied with.
If the will does not contain an attestation clause, HMCTS will require an affidavit of due execution (or witness statement verified by statement of truth) by a witness present during execution.
Solicitor’s duties
Give clear instructions to clients explaining how to sign and witness the will and warn them about having Bs or their spouses signing as witnesses.
Negligence concerns as solicitors can owe duties of care to prospective beneficiaries.
Entitlement under the intestacy rules
a. The spouse receives the personal chattels
b. The spouse receives a statutory legacy of £322,000
c. The rest of the residuary estate is split in half between the spouse and the issue.
The intestate’s spouse must survive them for 28 days in order to inherit it. If they don’t, estate is distributed as though they pre-deceased them.
If surviving spouse on intestacy wants the property to form a part of their interest in the estate
They can do this as long as they still live in the house. Must notify the PRs within 12 months of the grant of representation.
May have to pay equality money if the house is worth more than their entitlement.
Entitlement order when no spouse
Issue
Parents
Brothers and sisters
Half brothers and half sisters
Grandparents
Uncles and aunts
Half uncles and half aunts
Bona vacantia
