Wills Flashcards
liability and burden of IHT meaning
liability = who must pay the tax
burden = who HMRC will chase if unpaid
due execution clause
s9 Wills Act 1837
what happens if no s9?
need to provide affidavit of due execution
what happens if presumption of validity/(…) applies?
person trying to rebut has onus
facts point towards random people witnessing will and youre tyring to challenge validity - what can be done?
ask for affidavit of due execution
interview witnesses to see if signatuers were genuine and in which circumstances they were made
things to prove capacity
- medical attestation
- medical records
- detailed statement from those who visited person regularly
if there is no presumption of validity, who has onus
person seeking to rely on will
what induces suspicious circumstances
executor is also main beneficiary + often in position of trust (like carer…)
issue with challenging will based on undue influence
- very high threshold
- need to show coercion that goes beyond simple persuasion
-claimant of undue influence can be penalised wtih costs if not able to establish it
urgent steps to do if you want to challenge a will
lodge a CAVEAT in Probate Registry through PA8A form- its valid for 6m and will warn you if an executor has tried to take grand
+ SEND urgent letter to person seeking to rely on will, notifying of our interest and ask for their solicitor (so we can get a copy of the will etc)
duty and liability of an executor
collect and manage the estate, will have to apply for grant of probate, pay IHT, distribute the estate conforming the testator’s wishes
duty for life
not personally liable for anything unless maladministration
how to obtain a grant of probate
1) pay IHT
2) apply to Probate Service (PA1P) online where you have to send 2 A4 photocopies of will and any codicils, IHT400, fee of £273
3) within 20 working days of sending, HMRC usually sends response on IHT401 form and
how to pay IHT
1) must pay within 6m of end of month when death occurred (otherwise will be charged interest)
2) unless there is an option which attract instalments (property, certain shares - 10x), pay all at once
3) option to fund can be bank loan, from B’s, own money, certain chattels or small sums that pass without need for grant
act for if you are left out and want to claim
Inheritance (Provisions for Family and Dependants Provision) Act 1957
what do you say if executor wants to keep will hidden
MUST inform Beneficiaries
the grant is public so once they’ve done that, anyone can see (+ shouldnt really delay grant after 1y - executors year, because B can start claim against them)
what do you tell client if they want to make firm executors
1) obviously happy to act and will have them as testators and beneficiaries as best interest
2) will have to account for a reasonable sum for payment (payable from the estate)
3) remind testator that they don’t need to appoint law firm, can appoint a family member, a friend or anyone they might trust (cheaper)/ however understand we have a rapport and you may feel more confident in appointing us
you send a codicil to your client for them to execute - what must you warn them about
1) how a codicil works: will effectively republish the will so has anything changed that might be affected (eg beneficiaries? which take place from date of will)
2) must be signed in same way as will and both witnesses must be over 18 and could be called to give explanation later on although unlikley
3) make sure witnesses are not beneficiaires or their spouse/CP as this makes gift fail
4) if they want to make any changes, safest for them to request you and then you send them a new version. if they’re pressed on time, can do it themselves but make sure to write their initials + witnesses initials next to it
5) please dont attach anything to codicil that could damage it, including stapling it, paperclips..
a beneficiary wants to alter gift, what do you suggest?
1) can simply give it to whomever they want, but don’t advise it because if they die in the next 7 years, gift will be taxed again
2) do a read back variation (will be as if original will stated this, no extra cost) (s142)(must be done within 2y from death)
3) look at whether any CGT will apply (if s142, WONT apply)
protection available to PRs in distributing estate
1) s27 for unknown creditors (need to wait 2m from notice) (advertise as early as possible, Executor any time after death, Admin any time after grant)
2) for known, but missing B: keep asset in case they appear get indemnity from Bs, get insurance, lastly get Benjamin order (so expensive though)
3) wait 6m to make sure no Act 1957 applies
what’s the general rule with alterations
1) presumed to have been made after alteration
2) need to be executed
3) if are not and original can be read, original takes place
4) if obliterated can try to use external evidence but usually understood that testator revoked gift
5) be weary of doctrine of conditional revocation (if thick line making gift unreadable and new gift on top but no attestation = can use extrinsic evidence to establish original gift and such will be valid)
Claiming under Act 1957
a) spouse or civil partner
b) former spouse or civil partner (divorced + not remarried)
c) child
d) children of the couple
e) maintained by deceased immediately before death (substantial contribution to one’s needs)
f) living in same household and in relationship akin to husband and wife with deceased for 2y
ordinary standard Act 1957
sum reasonable for maintenance
spouse standard Act 1957
reasonable sum, whether for maintenance or not
ground to apply for Act 1957 and standard
did not make reasonable provision (and then different standard whether ordinary or spouse)
burden is on applicant
common guidelines court considers in Act 1957
1) financial resources and needs of the applicant against those of other beneficiaries (looking at earning capacity, financial obligations)
2) size and nature of the estate
3) the deceased’s obligations towards beneficiaries/appicant
4) physical/mental disability of applicant
5) anything else that may be relevant such as applicant’s conduct
!! court has discretion
can testators be protected from Act 1957 by doing lifetime gifts?
not really, court can look into lifetime gifts up to 6 years before death and can claim from it
+ court can claim from any beneficiary
special guidelines court considers in Act 1975
1) if child: need for education, training?
2)other resources
3) for spouse/partner their age and contribution to the welfare family, duration of marriage, likelihood of financial settlement in divorce
4) if cohabitant, looks at their age, length of cohab, contribution cohab made to welfare of family
can a CP revoke a will?
yes, in the same way as marriage (unless will made in contemplation of specific marriage or will to be valid regardless of whether marriage happens or not –> need to make clear in drafting)
** will can also be valid contingent on marriage taking place
draft will made in contemplation of marriage
‘This is the last will and testament of NAME of ADDRESS and is made in expectation of entering a CP/MARRIAGE with NAME and I declare this will will not be revoked by the formation of CP/MARRIAGE’
draft will made contingent on marriage
‘this is the last will and testament of NAME of ADDRESS and I declare this will’s validity is conditional on my marriage with X taking place within the next X months from the date this will is made (X)’
draft will to not be affected by marriage
this is the last will and testament of X of ADDRESS and I declare that the validity of this will is not to be affected by my marriage with X taking place, or not, within the next X months from the date this will is made (DATE).
key thing to remind testator when they leave a gift to their children !!!
there is a provision implied by law (s33) where if you leave a gift to your child without substitution and they predecease you, if they have a living child at the time of their death, the gift will automatically pass to their child (your grandchild).
in gifts not to your children, if the beneficiary predeceases you and there is no substitution, the gift would go back to your residuary estate.
if you do not want your grandchild to take the gift in any circumstances, please make sure to provide a substitution in case gift to child fails
what to remind client when they are making gifts
1) s33 implied for children
2) where do they want IHT to come from? usually its residuary estate
3) if the gift has mortgage and is silent, beneficiary takes gift subject to mortgage. make special provision if you want mortgage to be discharged before distrbution
things to be aware of a if a beneficiary is also the executor and want to change their gift
obviously could under normal rules of variation and power of appropriation but would actually be a breach of fiduciary duty!! (normally would just require consent from B who executor is appropriating)
in codicil - when do you rewrite a clause fully or just replace info? (draft)
fine to say replace X with Y in clause Z if its just one thing, but if its a substantial modification, better to say replace clause X with this; (and rewrite)
should you say you revoke clause X and replace it by Y? (in codicil) (drafting)
depends - if some things from clause are being maintained (like one of the B’s and then just adding more gift and more B’s), if you say revoke seems like you dont want original B to get anything so confusing- better to just say replace
key thing to remember regarding executor in drafting
make sure to have substitution
will drafting checklist
1) original sentence (last will….) (revocation…)
2) funerary arrangements
2) if made before CP/marriage, lay out whether its conditional, contemplation, regardless…
3) always add a substitution for executor
4) if gift for children, remind testator of s33
5) remind testator that failed/lapses gifts go to residuary estate (+ if gift to joint people, make sure to say it doesnt fail if one dies)
6) remind testator where IHT usually comes from and if they want to change how mortgage/tax is borne
7) divide legacies between:
a) pecuniary
b) personal
8)always add receipt clause if leaving to charity or minor (+ substitution if charity no longer exists - executors can pay to whichever charity they think most closely fulfils purpose of X)
9) residuary gift clause
10) ultimate gift clause
drafting opening of will and revocation
This is the last will and testament of NAME of ADDRESS which I make on this day of DATE
- I revoke all former wills, codicils and testamentary dispositions.
drafting appointing friend as executor and firm if fails
- I appoint NAMe of ADDRESS to act as my executor
- If she dies before me or if the appointment does not take place for any reason, I appoint FIRM of ADDRESS to act in her place. I would like no more than 2 partners to take the grant of probate of this will. The reference to FIRM includes any firm that has succeeded in carrying on or incorporated the practice of FIRM at the time of my death.
- Any person acting as executor or trustee for this will in their professional capacity are entitled to charge, and be paid, a reasonable renumeration for the services they or their firm provide. To be borne for my residuary estate.
- In my will the expression ‘my Trustee’ shall, where relevant, include any executor or trustee for the time being of any trust arising out of my will.
drafting to when you give legacy to 2 people
I give to X and Y of ADDRESS, the (sum of)(chattel of) JOINTLY/IN EQUAL SHARES, and if one predeceases me, to the one living at my death
drafting gift to charity
- I leave (sum of)(my house of X) to the charity NAME registered in England and Wales under number X for their general charitable purposes. The receipt of X is sufficient to discharge my executors of the burden.
1.a. If at the time of my death the charity has ceased to exist or amalgameted with another or changed its name, my executors may pay to any charitable organisation which they consider most closely fulfils the purpose of NAME.
draft clause leaving all personal belongings to someone
- I leave all my personal chattels as defined by the Administration of Estates Act 1925 to X, save those which are subject to specific gifts in this will
draft residuary estate clause
Subject to payment of my debts and expenses, I leave all my estate otherwise not disposed of (‘my Residuary Estate’) to X (contingent on X)(jointly)(and if one predeceases me)(to the surviving ones in equal share)
draft ultimate gift
If the declared gift in clause (residuary estate) fails for any reason, I leave my Residuary Estate to X
clause to appoint a guardian to your child
if my (wife)(husband) dies before me, I appoint as guardians of my children who are under the age of 18 X of ADDRESS and X of ADDRESS, jointly, or if one predeceases me, the one who is living at my death
draft gift of your main residence
I give to X of ADDRESS my house XXX or any other property which I use as my main residence at the time of my death (‘the Property’).
(I direct that my Trustees must pay from my estate any outstanding mortgages, debts, or any other sums secured on the Property or any other related interests or expenses)
clause to make sure your house if gifted free of mortgage
I direct my Trustees to pay from my estate any outstanding debts, mortgages or any other sums secured on the Property, or any other related interests or expenses
draft gift of shares
I give X Shares of X to Y
!!! never say MY SHARES because the gift will lapse if they no longer own them at death
giving money to two people
I give sum of X to Y and Z jointly, and if one of them predecease me, to the one living at my death
