Wills & Administration of Estates Flashcards
What does not form part of the succession estate?
- Donations Mortis Causa (gift made in contemplation of death)
- Discretionary pension scheme benefits
- Insurance policies written in trust
- Statutory nominations
- Property held as joint tenants
What is the statutory order of entitlement of relatives who survive the deceased on intestacy under s46?
- If the deceased leaves a spouse who survives them by 28 days
- If the deceased leaves an issue
These are then the only class to consider. If not, then
- Parents
- Siblings
- Grandparents
If a person leaves a spouse and issue in intestacy, what are each entitled to?
The spouse is entitled to the personal chattels (excluding items for investment purposes only), statutory legacy (£270,000) and one half of the residue absolutely
Issue is entitled to one half of the residue, though they must be aged 18 or over or married in order to inherit (if the issue has died, then their own issue can inherit in their place as long as they are at least 18 or married)
At what point must the person making the will have testamentary capacity?
At the time the will is EXECUTED
What is the exception to the rule an individual must have capacity at the time of execution?
Parker v Feldgate: a will is still valid if
- had capacity at the time they gave instructions
- will was prepared in accordance with those instructions
- at time of execution, testator understood they were signing a will for which they had previously given instructions
When is testamentary capacity presumed?
If will appears to be rational and has been duly executed
Who has the burden of proving undue influence?
Burden lies with the person making the allegation and the court requires evidence
What is the definition of undue influence and duress
Occurs where a testator is coerced into making the will or including particular terms, against their judgement or contrary to their intention
Who has the burden of proving the testator had testamentary capacity?
The person who is seeking to prove the will as valid and they must produce evidence to rebut the presumption that the testator had testamentary capacity
What are the formal requirements for a will as outlined in s9 Wills Act?
- writing and signed by the testator
- testator intended his signature to give effect to the will
- signature is made or acknowledged by the testator in the presence of two or more witnesses present AT THE SAME TIME
- each witness either attests and signs the will OR acknowledges the signature (must be in the presence of the testator but not necessarily the other witness)
When is there no presumption of knowledge and approval of the will?
- The testator is blind or illiterate
- Will was signed by someone on behalf of the testator
- there are suspicious circumstances
What does an attestation clause for a will do?
it raises the presumption that the will was executed in accordance with the s9 requirements
Who CANNOT be a witness to a will?
A beneficiary (otherwise they will lose their legacy) but the rest of the will remains valid
What are the minimum and maximum number of executors?
Minimum of one and maximum of four
Who can charge for their time as executors?
Only professional executors and trustees can charge for their time as executors.
Though all executors can claim reasonable expenses
How does an executor renounce their role if they are unwilling to act?
- They must sign a form of renunciation
- This will be noted on the grant when it is issued
- Renunciation is final and cannot change their mind without court approval
- Executor cannot renounce if they have already inter-meddled with the estate (things such as arranging the funeral and securing the deceased’s assets DO NOT COUNT as intermeddling)
How can an executor reserve power?
- there must be one other executor who takes out a grant of probate
What happens if undue influence is proven?
The will is declared invalid and the intestacy rules will apply
What should the PR’s do if something needs to be rectified in the will?
Application for rectification must be made within 6 months of the grant, though it is possible to make a late application with the permission of the court
If the personal representatives make a distribution six months or more after the grant, they will not be personally liable to a beneficiary wishing to claim against the estate as a result of the error. The disappointed beneficiary may still be able to recover from beneficiaries who have already received a distribution
What is the general rule on amendments made after the will is executed?
General rule is that any amendments after the will has been executed are invalid and unenforceable
What is the rebuttable presumption of alterations to a will?
There is rebuttable presumption that alterations are made AFTER the will is executed
When will an alteration to a will post-execution be valid?
If it meets the formalities of a will (signed by testator and two witnesses) then it is valid
When are obliterations effective?
Where text has been crossed out so that the original text is illegible
AND
With intention to revoke
If the alteration is filling in a blank space, when is this presumed to have occurred?
There is rebuttable presumption that this was filled in prior to the execution of the will
When is a codicil valid?
If it is executed in accordance with the s9 requirements
What is the effect of a codicil on the will?
It effectively republishes the will (new witnesses take effect), will is deemed executed on the date of the codicil
Does a statement stating ‘this is the last will and testament of…’ revoke earlier wills?
This does not invalidate the earlier wills except to the extent that the new will is not consistent with the earlier wills or simply repeats the earlier will
