Wills Flashcards
What is the effect of divorce on gifts and appointments to a former spouse?
Gifts to a former spouse are revoked and treated as if that spouse died on the date of divorce; any appointment of the former spouse is also revoked.
How can you stop a suspicious person obtaining probate?
By lodging a caveat at the Probate Registry to prevent grant of probate without notifying the caveator.
What three core elements must a testator understand to have testamentary capacity?
The nature of the act (making a will); the extent of their assets; the claims to which they ought to give effect.
Under s 9 of the Wills Act 1837, what formalities must be satisfied for a valid will?
The will must be in writing, signed by the testator, and signed or acknowledged in the presence of two or more witnesses, each of whom must sign or acknowledge in the testator’s presence.
When does marriage revoke a prior will, and what is the exception?
Marriage automatically revokes a prior will unless that will was made “in contemplation of marriage” to a specific person.
Contrast how divorce revokes parts of a will versus marriage.
Divorce revokes only gifts and appointments to the former spouse (rest of the will remains valid); marriage revokes the entire will unless made in contemplation of that marriage.
What presumptions arise when a will is missing after the testator’s death?
It is presumed the testator intentionally destroyed the will with capacity and intent, thereby revoking it.
How does the execution of a new will affect prior wills?
A new will revokes previous wills, and any inconsistent parts are impliedly revoked even without express words.
What distinguishes mutual wills from mirror wills?
Mutual wills are made under a binding agreement not to revoke without the other’s consent (creating a constructive trust on revocation); mirror wills are simply identical wills by spouses with no binding agreement or constructive trust.
Under what circumstances can a handwritten amendment to a will be valid?
Only if the original wording is illegible or the alteration is executed, signed and witnessed in the same manner as the original will.
What effect does a codicil have on the date of a clause in the original will?
The codicil republishes the will, so the codicil’s execution date applies to that clause.
Define adeemance and give two examples of when a specific legacy adeems.
Adeemance is the failure of a gift because the item is no longer in the estate at death, e.g. the item was sold under contract before death; or it no longer matches its description in the will.
What happens to a legacy if the beneficiary predeceases the testator?
It lapses into the residuary estate, unless the will appoints a substitute beneficiary.
Why does a beneficiary-witness risk losing their gift, and how can that be avoided?
A witness-beneficiary’s gift fails unless two separate non-beneficiary witnesses also attest the will.
Who holds a gift for a minor until age 18, and why?
A trustee holds it, because a minor cannot give valid legal receipt.
What are examples of “general legacies” and how are they satisfied if the specific asset no longer exists?
General legacies include cash (pecuniary), demonstrative gifts like “a horse,” and the residuary estate; if the specified asset no longer exists, executors purchase an equivalent from estate funds.
List four categories of property that pass outside the estate.
Jointly owned property (by survivorship); life insurance proceeds; pension death benefits; life interests in trust; gifts where the donor retained a benefit.
Why might a gift that passes outside the estate still be relevant for IHT?
Because if the donor retained a benefit (e.g. continued living rent-free in a gifted house), it may still be treated as part of the estate for IHT purposes.
What share does a surviving spouse with children take on intestacy?
The first £322,000 plus household chattels (if they survive 28 days), then 50% of the residue; the other 50% passes to the children (per stirpes).
Who inherits if there is no surviving spouse or issue?
Parents equally; then whole-blood siblings (or their children), then half-blood siblings (or issue), then grandparents, then aunts/uncles (whole or half), and finally the Crown.
When and how can the Residence Nil Rate Band (RNRB) be claimed?
Up to £175,000 if the deceased lived in the property and it passes to direct descendants; available even if the property was sold before death.
What is the taper relief percentage for a gift made five years before death?
0.6
Name three other exemptions or reliefs available against IHT.
Annual exemption (£3,000 per annum); spousal exemption (unlimited gifts to spouse); charity exemption; small gifts allowance (£250 per person per year); marriage gifts.
What qualifies for 100% Business Property Relief (BPR)?
Unquoted shares in a trading company and business or interest in a business held continuously for at least two years.
