Wills Flashcards

1
Q

What does testamentary capacity mean?

A

Mental capacity and intention to make a will

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2
Q

What must testator understand to have capacity?

A
  • Nature of their act (making a will)
  • Extent of their property
  • Who a testator would normally give gifts to.
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3
Q

What proof is needed for mental capacity?

A

Testator presumed to have necessary mental capacity unless someone challenging it can point to a lack of capacity

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4
Q

What happens if will made under duress or undue influence?

A

Will is not regarded as the act of the testator and entire will fails and will not be admitted to probate

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5
Q

What is duress when making a will?

A

Will issued due to force or fear of injury

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6
Q

What is undue influence when making a will?

A

If influence overpowers the testator’s volition (beyond mere persuasion)

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7
Q

Formal requirements for a will to be validly executed?

A
  • in writing
  • signed by the testator (or someone in the testator’s presence who the testator has directed to sign on their behalf) – a mark intended as a signature may be sufficient
  • signed by the testator in the presence of two or more witnesses – witnesses don’t need to read the will or know they are witnessing a will
  • signed by each witness in the presence of the testator (but not necessarily in the presence of the other witness)
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8
Q

Purpose of an attestation clause?

A

If no attestation clause proof must be offered that formal requirements of wills met.

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9
Q

What is this “signed by the testator in our presence and then by us in his”

A

Example attestation clause

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10
Q

Requirements for other documents to be included with will?

A

Will identifies the document, it must exist at the date of the will and be referred to as existing

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11
Q

Consequences of validly identifying another document in a will?

A

Document effectively becomes part of the will

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12
Q

Effect of including a future intention to make a list, schedule or memorandum?

A

Does not become part of the will

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13
Q

What is the difference between executors and administrators?

A

Executors administer estates under wills and administrators administer intestate estates.

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14
Q

How does testator appoint an executor?

A

Name them in the will

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15
Q

Effect of divorce on a will?

A

The spouse treated as if they had died - includes if appointed as executor.

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16
Q

How does someone named as executor accept office?

A

By taking a grant of probate or by intermeddling (doing something that shows they’ve accepted office, could be as small as notifying deceased’s bank of their death)

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17
Q

How does someone named as executor decline acting?

A

Can renounce their right if haven’t already accepted the office

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18
Q

Is the role of executor all or nothing?

A

Yes - can’t accept some and renounce others

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19
Q

Process for renouncing acting as an executor?

A

Renunciations must be filed at the Probate Registry – usually by another person seeking grant of probate.

20
Q

What effect does renunciation of executor appointment have on trusteeship?

A

No affect

21
Q

What is the purpose of reservation of power by executor?

A

An executor who doesn’t wish to act can have power reserved – means won’t be involved for now but if the circumstances change they can apply for a grant of probate at a later stage

22
Q

How can prove an alteration was made before execution?

A

Statements from the witnesses or the initials of the testator and their witnesses next to the alteration, provided the will reads naturally after the amendment.

23
Q

How should amendments to a will be made after execution?

A

change must be witnessed in the same manner as an entire will is witnessed

24
Q

Presumption on unattested alterations on a will?

A

Are assumed to have been made after execution unless was filling in a blank (such as name etc.)

25
Q

What is a codicil?

A

a separate document which refers to the will and is executed like one. Codicils were popular when wills were handwritten and long.

26
Q

How can codicils be used?

A

To amend or partially revoke a will

27
Q

What are the methods of revocation?

A
  • Marriage automatically revokes will, unless it appears from the will that when it was made the testator was expecting to marry a particular person and they intended all or part of the will not be revoked.
  • Divorce the law treats the former spouse as having died on the date of the divorce.
  • Destruction of will by burning, tearing or destroying.
  • A new will revokes an earlier will to the extent it’s inconsistent with the earlier will (often include clause in will to ensure previous wills are revoked to prevent this).
28
Q

Conditions for revoking by destroying a will?

A

o Must be by the testator or someone acting at their direction and in their presence
o Testator must have the intention to revoke at time of destruction
o If a will found destroyed after the death will be presumed testator did so with intention to revoke unless evidence to the contrary
o Destroyed will might be given effect if proved that destruction was contingent on a future event that didn’t occur for example destroyed intending to make a new one but wasn’t able to.

29
Q

What are the 4 categories of gifts?

A
  1. Specific legacy – e.g. “my engagement ring”
  2. General legacy – eg “a Fiat 500” rather than my
  3. Pecuniary legacy – gift of cash
  4. Residuary legacy – gift of everything left in estate after giving the other gifts and paying expense of administrating the estate
30
Q

What happens if Specific legacy isn’t in the estate?

A

the gift fails and the named beneficiary doesn’t take anything under the gift

31
Q

What happens if General legacy isn’t in the estate?

A

personal representative will use estate funds (if sufficient) to purchase the item

32
Q

When will a class of beneficiaries close to new members?

A

the moment any members of the class satisfies the condition. This means no new members can be added but anyone who is alive and within the class will share in the gift if they eventually satisfy the condition. E.g. gift to someone’s children when reach a specified age.

33
Q

What happens if the beneficiary dies before the testator?

A

The gift will fail.
1. If an alternative isn’t named on the will it falls into the residue.
2. If the residuary gift lapses as beneficiary dies then the residuary passes through the laws of intestacy.

34
Q

What is the exception for gifts failing when a beneficiary dies before the testator?

A

if gift was made to the issue of the testator (child, grandchild, great grandchild) and that beneficiary dies before the testator but leaves living issue then the gift doesn’t lapse and will go to the living issue instead.

35
Q

What is intestacy?

A

Statutory method of distributing assets not disposed of under the will (includes if will failed to give away all of their property for example if residuary gift failed)

36
Q

What are the intestacy rules when spouse and no issue?

A

Spouse entitled to all property, (note under intestacy rules spouse must survive at least 28 days to take).

37
Q

What are the intestacy rules when spouse and issue?

A

Spouse takes:
* all tangible moveable property (other than money, investment property such as stocks and property used for business)
* £322,000
* Half of remaining property

Children split the rest.

38
Q

What order does property pass under the intestacy rules when no spouse?

A

Property passes in following order:
1. To children (if child predeceases the decedent but have their own issue the issue will take on trust and split their parent’s share)
2. To parents
3. To full siblings
4. To half siblings
5. To grandparents
6. To aunts and uncles
7. To the Crown

39
Q

What happens to the house under the intestacy rules?

A

Spouse can require the personal representative to give them the couples matrimonial home in partial or total satisfaction of their interest (if home worth more than their share will have to pay the difference).

40
Q

What property passes outside the estate?

A
  • Joint property - passes to joint tenant(s)
  • Life policies – passes to beneficiary named in the policy under contract law
  • Pension scheme benefits – can nominate someone to take property so will pass to them
  • Trust property – passes according to terms of the trust fund.
41
Q

What should do if testator aged or suffered a serious illness?

A

Can have a medical practitioner to examine testator to satisfy that testator has capacity and record this

42
Q

Where is the burden of proof when allegation of duress or undue influence?

A

Person making allegation

43
Q

What steps can solicitor to ensure a will is validly executed?

A
  • Ideally execute in office, if not send detailed letter of instruction to the client
  • If executed elsewhere ask client to send will back after executing it so can check it
44
Q

Are codicils interpreted widely or narrowly?

A

Interpreted as far as possible to allow the admission of both the will and the codicil

45
Q

What does Section 46 of The Administration of Estates Act 1925 outline?

A

Rules for distribution of property under intestacy rules

46
Q

What statute contains intestacy rules?

A

Section 46 of The Administration of Estates Act 1925

47
Q

What do the statutory trusts provide for in intestacy rules?

A

Enable the issue of a deceased child of the intestate to be entitled to a share as if all the intestate’s children were living at the intestates death. The issue of the deceased child must reach 18 or marry to inherit.