Wills

Question 1

Discretionary Trust

Answer 1

• Not included in either:
• Taxable estate
• Succession estate

Question 2

Life interest trusts

Answer 2

Date to remember: 22 March 2006

Question 3

Spouse Rule to inherit

Answer 3

28 Day Survivorship rule; the Spouse needs to outlive the deceased spouse by 28 days for her to inherit.

Question 4

Spouse’s appropriation of the hot in full/ partial satisfaction of statutory entitlement

Answer 4

Election must:
- Within 12 m of the date grant was issued
- in writing
home is valued at the date of appropriation not the date of death.

Question 5

Testamentary Capacity is presumed where

Answer 5

Will is rational + duly executed (in accordance w formalities of WA s 9)

Question 6

Testamentary Capacity

Answer 6

• understand the nature of the act of making a will and its effects
• At the time of execution (But Parker v Felgate)

1) Nature of act + effects
2) Extend of property disposing of
3) moral claims
4) no disorder of the mind

Question 7

Felgate 3 requirements

Answer 7

1) Instructions to the will was given when the T had capacity
2) The will was prepared in accordance with those instructions
3) at the time of execution the T understood they were signing a will they previously gave instruction to

Question 8

Golden Rule (= best practice merely)

Answer 8

if client giving instructions is elderly or seriously ill: best to have a medical practitioner conduct a assessment of their mental state + provide a contemporaneous assessment record of assessment and conclusion

Question 9

Challenging the validity of the will

Answer 9

HARD; the Banks test is LOW threshold; even if sm needs help doing everyday tasks may still be held to have TC to execute a will;

• The person challenging; must Show sufficient evidence to raise doubt (that the will is valid)
• then burden shifts on the propounder of the will to demonstrate that the test is satisfied (this is where the contemporaneous assessment by a medical repartition er would be useful)

Question 10

Duress/ UI

Answer 10

• High Threshold to be met
• Fairness is irrelevant ( what matters is whether T was acting as a ‘free agent’

Question 11

Unclear or ambiguous provisions

Answer 11

Court rules on construction:
- overriding principle is to give effect to T’s intention
- Extrinsic evidence may be submitted if…
1) Wills or any part of it is meaningless
2) Ambiguity in light of surrounding circumstances/ on its face.

Question 12

Commorientes rule

Answer 12

Statutory presumption that the eldest died first (not abt hit)

Question 13

What if the order of death is uncertain?

Answer 13

Include an EXPRESS SURVIVORSHIP CLAUSE;

Question 14

Class Gift - when does the class close?

Answer 14

Best practice - to include an express classs closing provision to avoid administrative costs + also if T wants more than 1 B to inherit under the class gift clause;

Gift made to a group of people that comply with a general description;
A class gift can either be:
- Contingent: The Class closes when a B FIRST BECOMES ENTITLED TO POSSESSION OF THE GIFT
- No contingency: The Class closes when the T DIES + If there is at least 1 Beneficiary who satisfies THE DESCRIPTION under the class closing provision.

Question 15

Vested vs Contingent gift

Answer 15

Vested: NO Condition to satisfy; Absolute gift, Outright made - only thing B needs to do is survive the T (maybe express survivorship clause to avoid confusion)

Contingent: if B NOT satisfy the condition before their death - the gift deems –> substitution clause?

Question 16

Substitution gift clauses

Answer 16

Careful in how they are drafted;
- Not: “to my 3 nephews”
- but to “to such of my 3 nephews as survive me and if more than 1 in equal shares”

Question 17

When are manuscript alterations appropriate

Answer 17

When:
- need to be made urgently (insufficient time to prepare a codicil/ new will)
- Amendments have no impact on the will’s interpretation/ meaning (eg to correct typos/ spelling mistakes, to change B’s address)

Question 18

Generally: Manuscript alterations or new will?

Answer 18

NEW WILL unless 2 conditions *no time, not affect meaning of the will (interpretation).

Question 19

Solution if Unattested alteration + presumption that is was made after execution

Answer 19

1) Re-execute the will
2) Execute a codicil that affirms the ill

Both - Must make express reference to the manuscript amendments.

Question 20

Obliterations

Answer 20

2 ingredients:
1) Not apparent
2) Not deciphered by natural means

–> Treated as having been made w INTENTION TO REVOKE.

Question 21

when are obliterations NOT EFFECTIVE?

Answer 21

1) made by 3P
2) made by T w/o intention to revoke
3) conditional revocation

Question 22

Effects and uses of codicils

Answer 22

1) Republishes a will (affects construction)
2) Revives a will (but not if og will was destroyed)
3) Correcting problems (ie. s15 WA)

Question 23

Tc, K&A, s9 WA - mainly testamentary capacity

Answer 23

• Will
• alterations
• Codicil
• Amendments and revocations (destroy, damage)

Question 24

Revocation by later codicil

Answer 24

Note that revocation of a will by destruction DOES NOT necessarily revoke any codicils to it.

Question 25

Valid will and Valid codicil are to be read together

Answer 25

A codicil should contain an express clause confirming/ revoking the previous will; If not --> The will is going to be given effect to to extent possible and will be revoked to the extent that the later codicil is inconsistent with it.

Question 26

what if physical act of destruction is done by 3P?

Answer 26

- Ineffective UNELSS done at T's direction + at T's presence.

Question 27

Letters of wishes

Answer 27

- Not form part of the will - Not binding - Mere guidance on PRs/ Trustees.

Question 28

Incorporation of documents

Answer 28

1) Document must be clearly identified in the will 2) Document must exist when the will is executed 3) Will must clearly refer to the document as being in existence at the time the will is executed.

Question 29

Mutual vs Mirror wills

Answer 29

Mutual: Need consent of the other to amend In attempt to revoke will w/o other's. consent - Equity may: - Impose Constructive trust - limit the effect of any new will Mirror: NO constructive trust/ Survivors free to revoke their will.

Question 30

Appointment of executors

Answer 30

Qualified appointment is possible as to; TIme Assets Type of assets Location

Question 31

K&A

Answer 31

The T must intend to give effect to the particular will; have read the contents of the will and understand the choices they have made

Question 32

A presumption of TC ... VS presumption raised by Attestation clause

Answer 32

When the will is rational + Validly executed That the will has been executed in accordance with the requirements of s9 WA

Question 33

Presumptions

Answer 33

Will is missing: T presumed to have destroyed the will with intention to revoke Will is damaged: T premised to have carried out the act of damage with intention to revoke UNLESS; Those administering the estate show that: - The act of damage was carried out by someone other than T - The act of damage/ destruction took place after the death - the T had no intention to revoke the will

Question 34

To make a will 'in contemplation of marriage'

Answer 34

Must include: - Name of future spouse - Identify the marriage ceremony - Set out express clause stating that not T's intention that this will be revoked after specific marraiage.

Question 35

Divorce (focus on the when?)

Answer 35

Treats the divorced spouse as having predeceased the T at the date of the divorce order (sort of partial revocation)

Question 36

Step 1 in assessing claims for IPFDA (Step 2: assessing what award the court should make)

Answer 36

Did D fail to make reasonable financial provision for A (either via will or intestacy)? 2 standards - Objective + based on statutory criteria: For spouse: Such provision as would be reasonable - regardless of whether that provision is required for maintenance For others: Such provision as would be reasonable FOR the applicant to receive for maintenance.

Question 37

Statutory grounds for Spouse/ Cohabitee;

Answer 37

1) Age of Spouse/ Cohabitee + Duration of marriage/ cohabitation (min 2 years immediately before death) 2) Contribution made by A to the welfare of D's family; take care of home/ family

Question 38

Statutory grounds for Not A's Child/ Other A: (2 Additional for child)

Answer 38

SS1) Basis, Time, Extend of contribution by D to A 2) Extent to which D had assumed responsibility for A's maintenance + additional for child: - Extent to which D knew A was not their child - Liability of oany other person to amintain A

Question 39

Statutory Grounds for Child

Answer 39

- Way A might expect to be educated/ trained.

Question 40

IPFDA claim

Answer 40

Must be made within 6 months of the DATE OF THE GRANT

Question 41

Variation

Answer 41

Each asset may only be varried once

Question 42

Precatory trusts

Answer 42

Not a formal trust; Where D passes on property to Beneficiary + expresses how wishes B pass those assets on to others; - Bcs not formal trust; B not have to do that - he can keep the assets Why this a thing? bcs IHT advantage (only; ie. no CGT advantage) --> IHT advantage; Original Beneficiary if makes distribution as per wishes of D within 2 years of D's death NOT taxed as making PET - As if the gifts were made by the D directly by D's will. But Distributions are treated as chargeable disposals made by OG Beneficiary.

Question 43

Variation vs Disclaimer;

Answer 43

3 points; - When make? - Regarding what? - Towards whom? - Variation: Even after accepting the inheritance/ whole or part of the inheritance/ can chose the destination. Disclaimer: Only before accepting inheritance/ only whole of the inheritance/ cannot Chose the designation - either acc to will or intestacy.

Question 44

Do PRs need to approve the variation?

Answer 44

No they dont need to approve - but they will need to sign the deed of variation if it alters the IHT payable; and then they have to provide a copy of it to the HMRC and also pay the hit (can only refuse to sing if there aren't enough funds to pay the IHT)

Question 45

Conditions for variation

Answer 45

1) Must be made by OG beneficiary + in writing (not a need necessarily but usually) 2) Must be made within 2 years of the Date of Death 3) Must state that IHTA and CGTA apply 4) Must not be made for consideration of money or money's worth (each asset may only be varied once)

Question 46

How does the court determine what award to make to A under IPFDA?

Answer 46

Request a schedule of that A's Assets& liabilities.

Question 47

Best practice if client wants to incorporate unexecuted document

Answer 47

Instead of referring to it (incorporation by reference) --> best to make it part of the will by - bcs usually will be lists of assets - including the will in the will in the form of a schedule.

Question 48

What happens in the absence of an express revocation clause

Answer 48

The former will is given effect to the the extent it is possible and only revoked to extent it is inconsistent with the later will/ codicil

Question 49

Republishing of a will

Answer 49

As if the will executed at the Date of Execution of the Codicil.

Question 50

Attested alterations

Answer 50

An alteration post execution needs to be attested to be valid (otherwise is unenforceable and invalid); Solutins to if unattested alteration; - Re-execute the will - Execute a codicil after it to affirm the will Both cases - make EXPRESS REFFERENCE to the manuscript amendments

Question 51

Distinguish Amendments (and revocations) vs Alterations

Answer 51

One is abt burning, tearing, otherwise destroying the will and revoking it (if intent is also present) The other is abt alterations ie. Strike out, obliterations etc.

Question 52

Note BE SPECIFIC when saying that obliterations are valid:

Answer 52

What obliterations - The ones with INTENT TO REVOKE - not the ones made by 3P - not the ones made w/o intent to revoke (ie. conditional revocation on the new gift taking effect)

Question 53

General Rule

Answer 53

Amendments after execution are invalid and unenforceable Amendments before execution are valid and enforceable AS LONG AS T also has TC + K&A Rebbutable presumption: Alterations were made after execution: But there are 2 points to this: 1) the presumption can be rebutted by an Affidavit of plight and condition (W testifying as to the condition of the will before and after execution what is the difference there) 2) The exceptions to this rule; Blank spaces fill out, Re-execution, obliterations, Attested alterations.

Question 54

Obliteration

Answer 54

- Not apparent - Not decipher w natural means

Question 55

K&A presumed when

Answer 55

- T has TC - and the will was Duly executed

Question 56

TC presumed when

Answer 56

- Will is rational - Duly executed

Question 57

Attestation clause

Answer 57

Can raise a presumption of due execution in accordance w s9 WA.