Wills

Question 2

What needs to be dealt with after a person’s death?

Answer 2

Their estate (assets and liabilities)

This can be controlled by a person’s will or by the laws of intestacy.

Question 3

What are the three requirements for creating a valid will?

Answer 3

• Capacity at the time the will was made
• Intention to make a will
• Executed in accordance with formalities

Question 4

What is the age requirement for a testator to validly make a will?

Answer 4

At least 18 years old, with exceptions for privileged wills

Question 5

What is the presumption regarding a testator’s mental capacity?

Answer 5

A person is presumed to have mental capacity unless proven otherwise

Question 6

What does the test for capacity involve?

Answer 6

The person must understand:
* The nature of the act
* The extent of their property
* The claims to which they ought to give effect

Question 7

What is the material time for assessing capacity?

Answer 7

When the testator executed (signed) the will

Question 8

What must a testator have to demonstrate intention to make a will?

Answer 8

• A general intention to make a will
• A specific intention to make the particular will

Question 9

What is the rebuttable presumption of knowledge and approval?

Answer 9

If the testator had the required mental capacity, they acted with requisite knowledge and approval

Question 10

In what circumstances does the presumption of knowledge and approval not apply?

Answer 10

• If the testator is blind or illiterate
• If there are suspicious circumstances

Question 11

What factors might a court consider regarding knowledge and approval?

Answer 11

• Clarity of the will
• Testator’s literacy
• Witnessing circumstances
• Any suspicious circumstances

Question 12

What is duress in the context of wills?

Answer 12

A will made under force, fear, fraud, or undue influence, not admitted to probate

Question 13

What must be demonstrated for a claim of undue influence?

Answer 13

Proof of coercion or pressure overpowering the testator’s freedom of action

Question 14

What are the general formalities required for a valid will?

Answer 14

• In writing
• Signed by the testator
• Witnessed by two or more witnesses

Question 15

What is an attestation clause?

Answer 15

A statement confirming the testator’s signature and the presence of witnesses

Question 16

What is required for a special attestation clause?

Answer 16

It must confirm that the will was read to a blind or illiterate testator

Question 17

What forms of signature are considered valid for a testator?

Answer 17

• Actual signature
• Initials
• Mark (e.g., thumbprint)
• Unfinished signature
• Stamped signature

Question 18

What is required for a witness to be valid?

Answer 18

They must understand the significance of witnessing a signature

Question 19

What is incorporation by reference in wills?

Answer 19

A will may identify another document that becomes part of the will, if it exists at the date of the will

Question 20

What is the rule regarding alterations and amendments to wills?

Answer 20

Alterations need to be proven as valid, typically made before execution

Question 21

What must be shown to validate an alteration made to a will?

Answer 21

It must be proven that it was made before execution, often by witness statements or initials

Question 22

What is required for a will alteration to be valid?

Answer 22

The alteration must be made before execution or with proper formalities.

Question 23

What happens if a will alteration cannot be proved to have occurred before execution?

Answer 23

The original gift applies.

Question 24

What is an unexecuted alteration in a will?

Answer 24

An alteration that is not made according to the required formalities.

Question 25

What is an executed alteration in a will?

Answer 25

An alteration that is signed and witnessed.

Question 26

What occurs if a testator obliterates original wording in a will?

Answer 26

It is treated as revoking the original gift.

Question 27

What is a codicil?

Answer 27

A brief document that adds to, amends, or partially revokes an existing will.

Question 28

What must a codicil reference?

Answer 28

The original will.

Question 29

What happens to a will upon marriage?

Answer 29

It is revoked unless it states otherwise.

Question 30

What is the effect of divorce on a will?

Answer 30

It partially revokes the will concerning the former spouse.

Question 31

What is required for a later will or codicil to revoke an earlier will?

Answer 31

It must be executed with the same formalities as a will.

Question 32

What constitutes an act of destruction for revoking a will?

Answer 32

Burning, tearing, or otherwise destroying the will with intent to revoke.

Question 33

What is required for destruction by someone other than the testator to be effective?

Answer 33

It must be done in the testator's presence and by their direction.

Question 34

What is the doctrine of dependant relative revocation?

Answer 34

A court may validate a will if the revocation was conditional on a future event that did not occur.

Question 35

What is a specific legacy?

Answer 35

A gift of a specified part of the estate that is clearly identified.

Question 36

What is a general legacy?

Answer 36

A gift that does not identify a particular item.

Question 37

What is a pecuniary legacy?

Answer 37

A gift of cash.

Question 38

What is a demonstrative legacy?

Answer 38

A general legacy that identifies the source from which the gift is to be made.

Question 39

What is a residuary legacy?

Answer 39

Everything left of the deceased's estate not otherwise disposed of.

Question 40

What is ademption?

Answer 40

The failure of a specific gift if it is no longer part of the testator's estate.

Question 41

What happens if the testator's specific gift is altered but still represents the same shares?

Answer 41

The gift does not adeem.

Question 42

What must the testator intend when destroying a will?

Answer 42

The intention to revoke.

Question 43

What are mutual wills?

Answer 43

Wills made by two or more persons with reciprocal benefits and an agreement not to revoke without consent.

Question 44

When does a gift in a will take effect?

Answer 44

As if the will had been executed immediately before death.

Question 45

What is the implication of using 'my car' in a will?

Answer 45

It usually indicates a contrary intention for the gift to refer to the car owned at the time of death if the car is different than that of the time of excecuting will.

Question 46

What is generally presumed when a will states 'my car'?

Answer 46

It is presumed to mean the car the testator had when the will was written, and if that car is gone, the gift will adeem. ## Footnote A testator can avoid this by specifying 'the car I own on my death'.

Question 47

What happens to a gift if a beneficiary has predeceased the testator?

Answer 47

The gift will lapse unless a substitutional gift is included in the will. ## Footnote If the substitutional gift is effective, it goes to the substitute beneficiary.

Question 48

At what date is a will typically construed regarding people?

Answer 48

At the date of execution. ## Footnote For example, a gift made to 'the eldest son of Jacob' is construed based on who fulfills that description at the date the will is made.

Question 49

What is the outcome if a gift is made to joint tenants and one dies before the testator?

Answer 49

The whole gift passes to the surviving joint tenant. ## Footnote This is different from gifts made in equal shares where the deceased's share lapses.

Question 50

What is the common condition for gifts in wills regarding the survival of beneficiaries?

Answer 50

Gifts are often conditional upon the survival of a beneficiary for a specified period, usually 28 or 30 days, after the testator's death.

Question 51

What does the law of 'commorientes' provide?

Answer 51

It provides that the younger person is presumed to survive the elder for succession purposes.

Question 52

What happens if a gift is made to a testator's child who dies before the testator?

Answer 52

The living issue of that child will receive the gift, taking 'per stirpes'.

Question 53

In the example with Maria's will, how is Charles's share divided after his death?

Answer 53

Charles's share is divided equally between his daughters, Diana and Eva.

Question 54

Does the rule saving gifts for issue apply to all beneficiaries?

Answer 54

No, it does not save gifts to beneficiaries other than the testator's issue.

Question 55

What happens to a gift if the beneficiary or their spouse witnesses the will?

Answer 55

The gift fails, but the will remains valid.

Question 56

What is required for a gift to remain valid despite a witness being a beneficiary?

Answer 56

There must be at least two other valid witnesses who are not beneficiaries or their spouses.

Question 57

What does the term 'children' encompass in the context of wills?

Answer 57

Legitimate, illegitimate, and adopted children, but not stepchildren.

Question 58

What is a class gift?

Answer 58

A gift of property to beneficiaries who fulfill a general description, such as 'to the children of Kevin'.

Question 59

When does a class typically close?

Answer 59

When at least one beneficiary has a vested interest, excluding any potential beneficiary not then living.

Question 60

In the example '£5,000 to the children of Zebedee', when does the class close?

Answer 60

At the date of the testator's death if there is any child of Zebedee then living.

Question 61

How does the class closing differ in '£5,000 to the children of Zebedee who attain the age of 18'?

Answer 61

The class closes at the testator's death if any child has already reached 18; otherwise, it remains open until the first beneficiary reaches 18.

Question 62

What is the outcome of the gift '£5,000 to each of the children of Zebedee who attain the age of 18'?

Answer 62

The class closes at the date of the testator's death, and if no children exist then, the gift fails.

Question 63

Can a will exclude class closing rules?

Answer 63

Yes, a will may exclude the class closing rules through a specific provision.