Wills and the Administration of Estates MCQS Flashcards
A died, survived by his wife (B) and daughter(C). His validly executed will includes only the following gifts:
(a) My house to my wife
(b) £50,000 to my daughter
A’s succession estate comprises the following property (all solely owned):
A house
Bank accounts containing £100,000
Personal chattels
Which of the following correctly explains how A’s estate will be distributed?
A) A is testate because he has a validly executed will. The house will pass to B. C will receive the contents of the bank accounts. The personal chattels will be divided equally between B and C.
B) A is partially intestate because his will does not dispose of his entire estate. The house will pass to B. C will receive £50,000. The remaining £50,000 and A’s personal chattels will be dealt with under the intestacy rules.
C) A is intestate because his will does not dispose of his entire estate. All his property will be dealt with under the intestacy rules.
D) A is intestate because his will does not dispose of his entire estate. The house will pass to B. C will receive £50,000. The remaining £50,000 and A’s personal chattels will be dealt with under the intestacy rules.
E) A is partially intestate because his will does not dispose of his entire estate. The house will pass to B. C will receive the contents of the bank accounts. The personal chattels will be dealt with under the intestacy rules.
B) A is partially intestate because his will does not dispose of his entire estate. The house will pass to B. C will receive £50,000. The remaining £50,000 and A’s personal chattels will be dealt with under the intestacy rules.
(Correct: Any property covered by the will is dealt with in accordance with that will. The remainder passes in accordance with the intestacy rules)
Which of the following would be included in a deceased person’s succession estate?
A) A vested remainder interest in a trust, a share of a house owned as tenants in common and cash held in a bank account.
B) A life interest in a trust, a share of a house owned as tenants in common and cash held in a bank account.
C) A remainder interest in a will trust which is contingent on the deceased surviving the life tenant, a share of a house owned as tenants in common and a life assurance policy not written in trust.
D) A remainder interest in a trust which is contingent on the deceased surviving the life tenant, a share of a house owned as tenants in common and a life assurance policy written in trust.
E) A vested remainder interest in a trust, a share of a house owned as joint tenants and cash held in a bank account.
A) A vested remainder interest in a trust, a share of a house owned as tenants in common and cash held in a bank account.
(Correct: All of these assets would be included in the succession estate. Note that the position would be different if the deceased held a life interest in the will trust or the house was held as joint tenants)
A died yesterday. His estate consisted of the following assets (all solely owned unless otherwise stated:
House £400,000 Antiques worth £180,000 (owned with B as joint tenants). Bank accounts £25,000 Life Assurance Policy £50,000 (not written in trust)
A was also the life tenant of C’s estate. There was £100,000 in the trust fund at A’s death. B is the remainderman.
What is the value of A’s succession estate?
A) £655,000
B) £565,000
C) £575,000
D) £475,000
D) £425,000
D) £475,000
(Correct. A was the sole owner of the house, the bank accounts and the life policy proceeds (which were not written in trust). The antiques pass to B via survivorship)
The following extract from official copies for a freehold property in London contains the entire Proprietorship Register for that property. Please read the extract and the information that follows and then answer the question below.
Proprietorship Register
Title Absolute
Proprietor(s): LUCY WATSON AND OWAIN HUTCHISON: of 1 Greenslade Avenue, London (W12 7JH).
The value as at 7 October 2001 was £375,000.
RESTRICTION: Except under an order of the Registrar no disposition by a proprietor of the land is to be registered without the consent of the proprietor of the charge dated 7 October 2001 in favour of Rydale Bank referred to in the Charges Register.
The heads of terms for the sale of the above property state that Lucy Watson is the seller. Owain Hutchison has died.
Which ONE of the following statements is the most accurate advice to a buyer client on the issue of who will sell the property?
A) Lucy Watson can sell on her own as she and Owain Hutchison held the property as beneficial joint tenants and on Owain’s death his beneficial interest passed to Lucy under the doctrine of survivorship so the buyer just needs to see an official copy of Owain’s death certificate.
B) Lucy Watson and Rydale Bank will sell the property together as Owain’s interest in the property passed to the Bank, who have a mortgage over the property, on his death.
C) The Restriction on the Proprietorship Register indicates that the buyer must purchase the property from Rydale Bank.
D) Lucy Watson and Owain Hutchison held the property as tenants in common so the buyer would need to see an official copy of Owain Hutchison’s death certificate and a second trustee should be appointed to receive the purchase monies with Lucy Watson thereby overreaching any beneficial interests in the property. Both Lucy and the second trustee will be the sellers.
A) Lucy Watson can sell on her own as she and Owain Hutchison held the property as beneficial joint tenants and on Owain’s death his beneficial interest passed to Lucy under the doctrine of survivorship so the buyer just needs to see an official copy of Owain’s death certificate
(Correct. Lucy and Owain were beneficial joint tenants (because there was no tenant in common restriction in the Proprietorship Register) so on Owain’s death, Lucy could sell on her own because Owain’s beneficial interest had passed to Lucy under the doctrine of survivorship. The buyer just needs to see an official copy of Owain’s death certificate)
Which one of these entries in the Proprietorship Register relates to co-owners of the property?
A) The Transfer to the Proprietors contains a covenant to observe and perform the covenants referred to in the Charges Register and of indemnity in respect thereof.
B) RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.
C) RESTRICTION: no disposition of the registered estate by the proprietor of the registered estate is to be registered without the consent signed by the proprietor for the time being of the charge dated the 17 June 2005 in favour of Redminister Building Society referred to in the charges register.
B) RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court
(Correct. This is the tenant in common Restriction)
If a buyer pays the purchase money to two trustees, why does the buyer not need to worry about the beneficial interests of any other deceased co-owners?
A) Because any such interests will be overreached.
B) Because the rule of survivorship applies.
C) Because only two people can hold the legal estate.
D) Because the buyer only needs to worry about the legal estate, not any beneficial interests.
A) Because any such interests will be overreached
(Correct. You have understood the concept of overreaching)
A man died intestate a month ago. He had never been married or in a civil partnership and had never had any children. Both of the man’s parents died before him. The man was survived by his brother (aged 20), his sister (aged 16, and pregnant with her first child when her brother died), and his aunt (his mother’s sister). The man’s sister gave birth to a baby boy (the man’s nephew) 6 months after the man died. The man’s sister died during childbirth, aged 17.
Who is entitled to share in the distribution of the man’s estate?
A) His aunt only.
B) His brother and his nephew only.
C) His brother only.
D) His aunt, his brother and his nephew only.
E) His brother and his sister’s estate only
B) His brother and his nephew only
(Correct. After spouse, issue and parents the next category of relative entitled to inherit are the siblings of the intestate. The siblings inherit on the terms of the statutory trust so in this case, the brother and sister are entitled to half of the estate each on the terms of the statutory trust i.e. contingent on reaching the age of 18.
The sister died after the intestate but before reaching the contingent age. This means her share never vested and is therefore not part of her estate. Any option suggesting the sister’s estate would benefit is therefore incorrect.
However, because the sister died leaving her own issue, the substitution limb of the statutory trust would apply. The share that would have passed to the man’s sister, passes instead to her children who are alive or en ventre sa mere (a French expression meaning “in its mother’s belly” which refers to a child conceived but not yet born) at the date of the intestate’s death, contingent upon their attaining the age of 18 or marrying earlier. Although the man’s nephew was not born until after his death, his sister was pregnant at this time and therefore the nephew satisfies the criteria assuming he reaches 18.
The man’s aunt would only inherit if the man had no siblings, or nieces /nephews)
A woman died intestate a month ago. At the time of her death she was separated from her husband of 10 years. The woman and her husband had discussed getting divorced but no formal proceedings had begun. When she died, the woman was living with her son (aged 17 years) and her step-son (aged 18 years). The woman’s daughter (aged 25) lives with her husband and their new baby, the woman’s only grandchild.
Who is entitled to share in the distribution of the woman’s estate?
A) The husband, son, daughter and grandchild only.
B) The husband, son, step-son and daughter only.
C) The son and daughter only.
D) The husband, son and daughter only.
E) The son and step-son only.
D) The husband, son and daughter only
(Correct. Where a person dies intestate and is survived by a spouse and issue, only those relatives will take a share of the deceased’s estate. Here, the woman was survived by her husband (it does not matter that they were not living together), and her son (it does not matter how old her son is) and daughter (it makes no difference whether she is living with the deceased or not). The step-son has no entitlement to the estate. Nor does the grandchild if the parent is alive at the date of the intestate’s death)
A man died intestate a month ago. His estate comprised a property owned as joint tenants with his brother, a bank account in his sole name, personal possessions, cash in the house, and a discretionary lump sum payable under the terms of the man’s pension scheme (nominated in favour of the man’s brother).
Which of the following lists the assets that will be distributed in accordance with the intestacy rules?
A) The property, bank account and personal possessions only.
B) The property, bank account, personal possessions, cash, and the amount payable under the discretionary pension scheme.
C) Bank account, personal possessions and cash only.
D) Bank account, personal possessions, cash, and the amount payable under the discretionary pension scheme only.
E) The property, bank account, personal possessions and cash only
C) Bank account, personal possessions and cash only
(Correct. Items owned as joint tenants will pass in accordance with the rules of survivorship. Therefore, his property will pass directly to his brother and not under the intestacy rules. The discretionary pension lump sum is payable in accordance with the nomination that was made, so will pass directly to his brother and not under the intestacy rules. The remainder of the estate assets are included in the deceased’s succession estate)
A man died intestate a month ago. He was survived by his civil partner and their son (aged 21). The man’s estate comprises a ½ share of a property owned as tenants in common with his civil partner (value of whole £500,000), a savings account (£40,000), a vehicle used solely for business purposes (£5,000) and personal possessions (£20,000).
Which of the following best describes what the man’s civil partner and son are entitled to under the intestacy rules?
A) The man’s civil partner will receive chattels (worth £25,000), a statutory legacy of £322,000, and half of the remainder. The man’s son will receive a contingent interest in the other half of the remainder.
B) The man’s civil partner will receive the entire estate passing under the intestacy rules. The man’s son will receive nothing.
C) The man’s civil partner will receive chattels (worth £25,000), a statutory legacy of £322,000, and half of the remainder absolutely. The man’s son is entitled to a vested interest in the other half of the remainder.
D) The man’s civil partner will receive chattels (worth £20,000), a statutory legacy of £322,000, and half of the remainder. The man’s civil partner is entitled to have the property appropriated to them in addition to her entitlement under intestacy. The man’s son will receive a contingent interest in the other half of the remainder.
E) The man’s civil partner will receive chattels (worth £20,000), a statutory legacy of £322,000, and half of the remainder. The man’s civil partner is entitled to have the property appropriated to them as part of their entitlement under the intestacy. The man’s son will receive a vested interest in the other half of the remainder.
E) The man’s civil partner will receive chattels (worth £20,000), a statutory legacy of £322,000, and half of the remainder. The man’s civil partner is entitled to have the property appropriated to them as part of their entitlement under the intestacy. The man’s son will receive a vested interest in the other half of the remainder.
(Correct. The civil partner is entitled to receive chattels worth £20,000 (the personal possession but not the business assets), plus a statutory legacy of £322,000, and half of the remainder. As the half-share of the property falls within the estate passing under intestacy, the civil partner can request that the property is transferred to them as part of their entitlement (not in addition to). The son will receive the other half of the remainder on statutory trusts. As he is over the age of 18 his share will be vested)
A woman died intestate a month ago. She had never been married or in a civil partnership. The woman was living with her only grandchild (aged 1). The woman’s son, the grandchild’s father, died before the woman.
The woman’s brother (her only sibling), both of her parents, and her daughter-in-law (the wife of her son) are still alive.
Who is entitled to share in the distribution of the woman’s estate?
A) Her daughter-in-law only.
B) Her daughter-in-law and grandchild only.
C) Her grandchild only.
D) Her granddaughter and brother only.
E) Her parents only.
C) Her grandchild only
(Correct. Where a person dies intestate and is survived by issue but no spouse/civil partner, the issue will inherit the whole of the estate. If a child of the intestate dies before their parent, but leaving their own issue, the intestate’s grandchild will inherit the share of the estate their parent would have inherited.
The other options were incorrect because:
-the parents and siblings of an intestate will only inherit if the intestate is not survived by either spouse or issue.
-Where a person due to inherit dies before the intestate’s (here her son) then the son’s spouse would not be entitled to any share of the intestate’s estate)
A woman executes her will in accordance with the requirements of s.9 Wills Act 1837. There is no doubt that she has testamentary capacity. The will gives the whole of the woman’s estate to her son and nothing to her daughter.
The daughter tells you that her brother encouraged their mother to make a will leaving everything to him and nothing to the daughter. The son confirms that he did ask his mother to make a will leaving everything to him because his sister is “not to be trusted with money”.
The daughter tells you that her mother would never have agreed or intended to give everything to her son.
Is the woman’s will valid?
A) No. The son encouraged the testator to make a will that favoured him over his sister and therefore the will does not reflect her true intention.
B) Yes, unless the daughter can provide evidence that her brother placed her mother under so much pressure that she only signed the will because she felt forced to and then when she signed it the woman did not actually want her son to inherit the whole of her estate.
C) Yes. The woman had testamentary capacity and executed the will properly. This raises a presumption that she had the requisite intention to make this will.
D) No, unless the son can provide evidence that his mother intended for him to inherit the whole of her estate.
E) Yes, provided that the son can produce evidence that his sister is reckless with money.
B) Yes, unless the daughter can provide evidence that her brother placed her mother under so much pressure that she only signed the will because she felt forced to and then when she signed it the woman did not actually want her son to inherit the whole of her estate
(The will has met the execution requirements and the testator has testamentary capacity. For the will to be invalid, it must therefore be shown that the son had unduly influenced his mother to the extent that she signed a will she did not intend to make. It is not unlawful for the brother to have persuaded his mother to prefer him over his sister. The burden of proof is on the sister to provide evidence that undue influence occurred, not for the brother to provide evidence that intention was present)
*/A woman died intestate two months ago and her estate was distributed between her three adult children. The woman had never married or entered a civil partnership. On the date of her death she had been living with her long-term partner and his son (aged 15) for the previous 10 months. The woman provided financial maintenance for both her partner and her step-son throughout the period they all lived together.**
Who is entitled to bring a claim against the woman’s estate under the Inheritance (Provision for Family and Dependants) Act 1975?
A) The woman’s step-child only.
B) The woman’s children and step-child.
C) The woman’s partner, children and step-child.
D) The woman’s partner only.
E) No one is entitled to bring a claim because the woman did not leave a will.
C) The woman’s partner, children and step-child
(Correct. The woman’s partner could apply as a person maintained at the date of death under s.1(1)(e). However, he could not apply as a cohabitee under s.1(1A), as they were not living together for the two years immediately preceding her death.
The woman’s step-child could possibly apply as a person treated as a child of the deceased under s.1(1)(d), or if the facts did not support this, then as a person being maintained under s.1(1)(e).
The woman’s children could apply under s.1(1)(c). That they are adult children and have received her estate under intestacy does not preclude a claim but would affect the likelihood of them receiving any award)
A new client aged 40 wishes to give instructions to make a will.
Which of the following most accurately describes best practice when taking the instructions?
A) Ask questions to establish if the client meets the requirements of the test in Banks v Goodfellow.
B) Ask questions to establish if the client meets the requirements of the test in Parker v Felgate.
C) Contact the client’s doctor for an opinion on whether the client has testamentary capacity to make a will.
D) Ask questions to establish if the client meets the statutory test for capacity under the Mental Capacity Act 2005.
E) Ask the client if they have testamentary capacity to make a will.
A) Ask questions to establish if the client meets the requirements of the test in Banks v Goodfellow.
(This is best practice in a case where your client is young and healthy)
A man died 8 months ago and the grant of probate was issued four months later. By his will the man left all of his estate to his son and nothing to his partner with whom he had been living for the last 3 years. The man’s partner wishes to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘Act’).
Is the man’s partner able to bring a claim under the Act?
A) No - because it has been less than 6 months since the date of the grant of probate.
B) No - because the man died more than 6 months ago.
C) Yes
D) No - because they were not married to or in a civil partnership with the man.
E) Only if a court order granting permission for the deadline to be extended is obtained.
C) Yes
(Correct. The deadline for bringing a claim (without court permission) is 6 months from the date of the grant of representation. A claim can be brought under the Act before the grant is issued)
A woman died interstate two months ago and her estate was distributed between her three adult children. The woman had never marred or entered a civil partnership. On the date of her death she had been living with her long-term partner and his son (aged 15) for the previous 10 months. The woman provided financial maintenance for both her partner and her step-son throughout the period they all lived together.
Who is entitled to bring a claim against the woman’s estate under the Inheritance (Provision for Family and Dependants) Act 1975?
A) The woman’s partner, children and step-child.
B) The woman’s children and step-child.
C) No one is entitled to bring a claim because the woman did not leave a will.
D) The woman’s step-child only.
E) The woman’s partner only.
A) The woman’s partner, children and step-child
(Correct. The woman’s partner could apply as a person maintained at the date of death under s.1(1)(e). However, he could not apply as a cohabitee under s.1(1A), as they were not living together for the two years immediately preceding her death.
The woman’s step-child could possibly apply as a person treated as a child of the deceased under s.1(1)(d), or if the facts did not support this, then as a person being maintained under s.1(1)(e).
The woman’s children could apply under s.1(1)(c). That they are adult children and have received her estate under intestacy does not preclude a claim but would affect the likelihood of them receiving any award)
A man died 8 months ago and the grant of probate was issued four months later. By he will the man left all of his estate to his son and nothing to his partner with whom he had been living for the last 3 years. The man’s partner wishes to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘Act’).
Is the man’s partner able to bring a claim under the Act?
A) Yes
B) Only if a court order granting permission for the deadline to be extended is obtained.
C) No - because it has been less than 6 months since the date of the grant of probate.
D) No - because the man died more than 6 months ago.
E) No - because they were not married to or in a civil partnership with the man.
A) Yes
(Correct. The deadline for bringing a claim (without court permission) is 6 months from the date of the grant of representation. A claim can be brought under the Act before the grant is issued)
If you are acting for a client who lacks testamentary capacity, should you take their instructions for preparing a will?
A) No
B) Yes
A) No
(If a client lacks capacity they cannot make a valid will and a solicitor should not accept their instructions to prepare one)
A client gives you instructions to prepare a new will which leaves the whole of their estate to their civil partner. You consider the test in Banks v Goodfellow and are certain that your client has testamentary capacity.
Five days after giving the instructions the client was involved in a car accident which left them disorientated and confused. You visit the client in hospital and bring with you the will you have prepared. The client remembers meeting you to give instructions for a will and is happy to sign the will you have prepared in accordance with those instructions. However, when talking with the client you have some doubt whether they still satisfy the test for capacity and their memory of your meeting and the points discussed seems a little unclear.
Which one of the following is correct?
A) It is possible for the client to make a valid will in the hospital even if they lack capacity when it is executed because they had capacity when giving instructions and the terms of the will are rational.
B) The client could execute a valid will in the hospital but only if they satisfy the test for capacity in the Mental Capacity Act 2005.
C) The client must have capacity at the time of execution for the will to be valid.
D) It is possible for the client to make a valid will in the hospital even if they lack capacity when it is executed because they had capacity when giving instructions and understand they are now signing a will for which they had previously given instruction.
E) The client could make a valid will in the hospital provided a doctor acts as a witness.
D) It is possible for the client to make a valid will in the hospital even if they lack capacity when it is executed because they had capacity when giving instructions and understand they are now signing a will for which they had previously given instruction.
(Correct. The rule in Parker v Felgate is an exception to the requirement that the client has capacity at point of execution. Provided they had capacity when giving instructions, the will was prepared in accordance with those instructions and the testator understands they are signing a will for which they had previously given instructions they don’t need to satisfy the Banks v Goodfellow test at the point of signing.
The other answers were incorrect because:
- The test in the Mental Capacity Act 2005 is not the test used for testamentary capacity
- There is no requirement for a doctor to witness a will
- Whether or not the will is rational is not a factor to take into account when applying the rule in Parker v Felgate)
You have been instructed by a client whose elderly mother is in a nursing home and suffering from dementia. Your client’s mother currently lacks capacity which she will not regain.
Your client’s mother is a widow. Her current will divides her estate equally between her three children, including your client. The will was duly executed by the client’s mother and witnessed by two of her friends.
Your client is concerned that their mother may have lacked capacity when she made her will six months ago as your client was expecting to receive more than a 1/3 share of the estate.
Which one of the following most accurately describes the legal position should your client wish to challenge the validity of the will?
A) There is always a presumption in favour of capacity and therefore your client must prove their mother did not have capacity when she made her will.
B) If your client’s mother did not have capacity at the time she made the will it is invalid. As she will not regain capacity it is no longer possible for her to make a new will.
C) There will be a presumption that your client’s mother had capacity when she made her will unless your client has evidence to suggest otherwise.
D) There is a presumption that your client’s mother lacked capacity when she made her will because she is elderly (unless the ‘golden rule’ was followed).
E) There is a presumption that your client’s mother lacked capacity when she made her will because of her current medical condition.
C) There will be a presumption that your client’s mother had capacity when she made her will unless your client has evidence to suggest otherwise
(Where the will on the face of it does not raise any concerns, because its terms are rational and it has been properly signed, then capacity is presumed. However, if evidence that raises doubt is provided however the presumption is rebutted and the burden of proof reverts to the propounder of the will to demonstrate the testator satisfied the Banks v Goodfellow test.
The other options were incorrect because:
- If a testator lacks capacity it may be possible for a statutory will to be made for them
- The age of the testator, and whether or not the golden-rule was followed, do not affect the general rule regarding presumption in favour of capacity where the will is rational and has been properly executed
- It is not correct that the person challenging a will must prove the lack of capacity
- The current medical condition is not a determining factor- the testator’s health at the time of execution is)
A will written in English contains the following attestation clause:
“Signed by the above named Testator in our joint presence and then by us in his after this document had been read to the Testator when the testator seemed thoroughly to understand and approve the contents”
In which circumstances should this form of attestation be used?
A) Where a testator is blind.
B) Where a testator is blind or is not signing the will on their own behalf.
C) Where a testator is blind or illiterate.
D) Where suspicious circumstances surround the execution of the will.
E) Where a testator is blind, illiterate or does not understand English.
C) Where a testator is blind or illiterate
(A blind or illiterate testator cannot read the will and therefore to raise a presumption that knowledge and approval was present it needs to be clear that the will was read out loud and that the testator understood what was said before it was signed. The other options were incorrect because: - A testator who does not understand English is not aided by the will being read out loud unless it is clear it was read in the testator’s preferred language by someone who was able to translate it - A testator who does not sign the will himself doesn’t necessarily need it to be read out loud, but the attestation clause should refer to the fact that he did not sign - Where there are suspicious circumstances this form of attestation is not helpful)
A testator die recently. Three weeks before he died, the testator made a new will leaving all of his assets, apart from a small cash gift to a local charity, to the children of his current marriage. The testator’s previous will made provision for his child from an earlier marriage, but this child does not benefit under the current will.
You have been instructed by the child of the testator from the earlier marriage. Your client spoke to the testator a few days before he died. The testator explained that his wife “kept on at him all the time” to make a will in favour of their children only, and to keep her quiet he signed a new will that reflected what she wanted.
The testator had capacity and knew and approved of the terms of the new will when it was duly executed.
Which of the following is correct regarding a claim of undue influence?
A) A claim of undue influence is not possible because the testator had both capacity and knowledge and approval when they executed their will.
B) If a claim of undue influence succeeds the will would be invalid and the local charity cannot receive the cash gift.
C) A claim of undue influence will succeed if your client provides evidence that the testator’s spouse persuaded the testator to make the will which excluded your client.
D) A claim of undue influence will succeed if your client provides evidence that when the testator signed the will his true intention was not reflected in its terms.
E) A claim of undue influence is not possible because the testator’s spouse does not benefit under the new will.
D) A claim of undue influence will succeed if your client provides evidence that when the testator signed the will his true intention was not reflected in its terms
(Even where a testator has capacity and knowledge and approval, if the will was made as a result of undue influence it will not be valid because it does not reflect the testator’s true intention. The other options were incorrect because: - it is not unlawful to encourage someone to make a will or persuade them that certain provisions should be included. Undue influence occurs where a testator is coerced into making a will that is contrary to their true intention. - It is not a requirement that the person committing the wrong unduly influences the testator to make direct provision for themselves - A testator can know and approve of their will but still be acting as a result of undue influence - Where a testator has been unduly influenced in respect of a particular gift (here the gift to the children) it is still possible for the remainder of the will to take effect)
You are reviewing two wills.
When the first will was signed the testator told the witnesses “I’ve not bothered to read anything the lawyer has sent me – it’s all a bit complicated to be honest, but I’m sure they’ve done the right thing”.
When the second will was executed the testator had hurt their hand and arranged for someone else to sign the will on their behalf.
Both wills were drafted by solicitors and duly executed with a standard form attestation clause. Both testators had testamentary capacity.
Assuming there is no other relevant information, which one of the following is correct with regards knowledge and approval of the wills?
A) Affidavit evidence that knowledge and approval were present at execution is required in respect of both wills.
B) Knowledge and approval will be presumed in respect of both wills because the testator had capacity when the wills were made.
C) Knowledge and approval will be presumed in respect of both wills because the testator had capacity when the wills were made and they were duly executed.
D) The first will is invalid due to lack of knowledge and approval. Affidavit evidence that knowledge and approval were present at execution is required in respect of the second will.
E) The first will is invalid due to lack of knowledge and approval. The second will is invalid because the attestation clause was not updated to make it clear the testator did not sign the will themselves.
D) The first will is invalid due to lack of knowledge and approval. Affidavit evidence that knowledge and approval were present at execution is required in respect of the second will
(A testator must intend to make the particular will they sign. This means they should know and approve of its contents and the contents of the will must have been read and understood. The first testator has not read or understood his will so did not have knowledge of its contents when it was signed.
The second will was signed by someone else on behalf of the testator. This means knowledge and approval will not be presumed. As the attestation clause was not amended to reflect this, affidavit evidence to prove knowledge and approval will be required. The other options were incorrect because: - facts suggest the first testator lacked knowledge and approval – so affidavit evidence will not help. - although testamentary capacity and due execution usually lead to a presumption of knowledge and approval, this does not apply where someone signs on behalf of a testator - an inadequate attestation clause does not render a will invalid)
”Signed by the above named [TESTATOR] in our joint presence“
Which one of the following most accurately summarises the effect of a will containing this clause?
A) If a will included this attestation clause proof of the testator’s intention would be required when seeking to admit the will to probate following the testator’s death.
B) If a will included this attestation clause the will would not be valid.
C) If a will included this attestation clause there would be a presumption that the will was executed in accordance with the requirements of s 9 Wills Act 1837.
D) If a will included this attestation clause it would be incomplete because there is no reference to the will having been read out loud to the testator.
E) If a will included this attestation clause, proof of due execution would be required when seeking to admit the will to probate following the testator’s death.
E) If a will included this attestation clause, proof of due execution would be required when seeking to admit the will to probate following the testator’s death.
(Correct. A properly drafted attestation clause raises a presumption that the will was executed in accordance with the requirements of s 9 WA (a presumption of due execution). Therefore it should refer to the testator and the witnesses signing in the presence of each other. This clause makes no reference to the witnesses signing in the presence of the testator so is incomplete. However, there is no legal obligation to include an attestation clause, nor is any specific form of attestation required, so a poorly drafted clause does not invalidate the will. However, proof of due execution is required, usually an affidavit of due execution sworn by the witnesses.
The other answers were incorrect because:
- A missing or poorly drafted attestation clause does not invalidate the will
- A properly drafted attestation clause does not give rise to a presumption of the testator’s intent
- The attestation clause would only mention the will have having been read out loud to a testator where the testator unable to read the will for himself)
A testator died recently. The testator’s will contains a gift of £10,000 to the testator’s brother and gives the remainder of the estate equally to the testator’s spouse and children. The testator’s spouse, and the spouse of the testator’s brother, witnessed the will.
Which one of the following accurately describes the effect of the man’s will?
A) The will has no effect as it was not properly executed.
B) The man’s brother and children will inherit under the will.
C) The man’s spouse, brother and children will inherit under his will.
D) The man’s spouse and brother will inherit under his will.
E) Only the man’s children will inherit under his will.
E) Only the man’s children will inherit under his will.
(Correct. Where a beneficiary (or their spouse) witnesses a will the beneficiary cannot inherit under the will. In this example the testator’s spouse and the spouse of the testator’s brother witnessed the will so neither the spouse nor brother will receive any benefit. Only the gift to the children is effective.
The other options were incorrect because:
S.15 Wills Act only applies to gifts under the will – it does not affect whether or not the will was properly executed
S.15 applies to a gift to a beneficiary who witnesses a will and any gift to their spous)
Your client arranges to sign their will at home and invites a married couple who live next door to act as witnesses. The three of them gather in the same room and the testator produces the will ready for signing. One of the witnesses leaves the room to take a phone call. Before they return, the testator signs the will in the presence of the other witness, who then signs the will in the presence of the testator. When the first witness returns to the room, the testator acknowledges their signature and the first witness then signs the will in the testator’s presence.
Has the will been executed in accordance with the formal requirements of s.9 Wills Act 1837?
A) The will has been properly executed.
B) The will has not been properly executed because one of the witnesses did not see the testator sign the will.
C) The will has not been properly executed because the testator and both witnesses must all be in the same room throughout the execution process.
D) The will has not been executed properly because the witnesses signed the will in the presence of the testator but not each other.
E) The will has not been properly executed because the witnesses are married to each other.
A) The will has been properly executed
(Correct. S 9 Wills Act 1837 requires the testator to sign the will (or acknowledge his signature) in the presence of two witnesses.
The other options were incorrect because:
- S 9 permits the testator to acknowledge his signature
- The marital status of the witnesses is irrelevant
- Provided s. 9 requirements are met there is no additional obligation for everyone in involved to be present throughout the execution process (although this is good practice)
- There is no requirement for the witnesses to sign the will in the presence of each other, only the testator)
Review the following extracts from a valid will:
Clause 1: I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will
Clause 2: I APPOINT ANDREW BATES of […] and CATHY DENNIS of […] (hereinafter called “my Trustees” which expression where the context admits includes any trustee hereof for the time being) to be the executors and trustees of this my will but if either or both of them shall die in my lifetime or be unable or unwilling to act as my executor I appoint ESTHER FISHER of […] to fill any vacancy thereby arising
The testator died last week. Andrew died before the testator. You may assume anyone entitled to act as executor or trustee is willing and able to do so.
Which one of the following is correct?
A) Cathy would act as the sole executor of the estate. If any trust arises following the testator’s death Esther would need to act as trustee with Cathy so there are two trustees.
B) Cathy and Esther will be appointed as executors of the estate. If any trust arises following the testator’s death, Cathy and Esther will also be the trustees.
C) Cathy and Esther will be appointed as executors of the estate. However, if any trust arises following the testator’s death, it is not clear who will act as the trustees.
D) Clause 1 needed to include the date the will was signed to avoid any confusion about which is the last valid will the testator made.
E) Clause 1 did not revoke any codicils made before this will.
B) Cathy and Esther will be appointed as executors of the estate. If any trust arises following the testator’s death, Cathy and Esther will also be the trustees
(Correct. Andrew cannot act as he has pre-deceased the testator and Clause 2 appoints Esther in his place. Clause 2 also confirms that the executors should also act as trustees of any trust.
The other options were incorrect because:
- The revocation clause revokes any will or codicil made previously
-Esther is appointed as a replacement for Andrew (there is no option for Cathy to act alone)
-A will should contain a date but this can be at the end or as part of the commencement clause – it does not need to be part of the revocation clause)
Your client is a lay executor appointed under a valid will that contains a number of express administrative powers for executors, however, no express charging provisions are included.
Which one of the following is correct?
A) Your client can charge for their time but only in accordance with the statutory power.
B) If there is a conflict between any of the express powers in the will and the equivalent statutory power your client may act in accordance with whichever confers the widest power.
C) Your client cannot charge for their time as there is no express power allowing this.
D) Your client can charge for their time as there is no express power preventing this.
E) If there is a conflict between any of the express powers in the will and the equivalent statutory power, your client must act in accordance with the statutory power
C) Your client cannot charge for their time as there is no express power allowing this.
(Correct. There is no express power to charge in the will and the statutory power to charge applies only to professionals. The other options were incorrect because:
Your client cannot charge for their time
Express powers take priority over the implied statutory terms in a will where there is conflict)
Review the following extracts from a valid will:
Clause 2: I WISH for any part or parts of my body where possible to be used for transplantation and for the treatment of others
Clause 4: I APPOINT my brother and sister jointly to be the guardians of any of my children who have not attained the age of 18 at the death of the survivor of myself and my civil partner
The testator died last week and is survived by her civil partner and their first daughter (aged 25), second daughter (aged 17) and their son (aged 14).
Which one of the following is correct?
A) No guardians are appointed following the testator’s death.
B) The testator’s brother and sister will be appointed as guardians for the testator’s second daughter and son only.
C) The testator’s brother and sister will be appointed as guardians for the three children.
D) Either the testator’s brother or the testator’s sister will be appointed as sole guardian of the testator’s second daughter and son.
E) The executors must ensure the testator’s body is used for transplantation and for the medical treatment of others.
A) No guardians are appointed following the testator’s death
(Correct. As the testator is survived by their civil partner no guardians are appointed by clause 4. The other options were incorrect because no guardians are appointed as the testator’s civil partner is still alive, and Clause 2 imposes a moral obligation rather than a legal one)
“ I give my gold diamond engagement ring absolutely and free of tax and costs of transfer to my niece”
You have just discovered that the testator sold the gold diamond engagement ring for £4,000 a month ago. However, there is still a platinum engagement ring among the testator’s personal possessions.
What will the testator’s niece receive?
A) £4,000
B) A gold engagement ring that the personal representatives must buy as a replacement.
C) Nothing
D) The testator’s niece may choose either £4,000 or the platinum ring but only if it has not been left to another beneficiary.
E) Platinum engagement ring but only if it has not been left to another beneficiary.
C) Nothing
(Correct. The gift of the ring is a specific legacy. If the testator no longer owns the item at the date of their death then the gift in the will cannot be given effect to. In the absence of any express clause providing for an alternative gift, the clause fails and the beneficiary will receive nothing.
The other options were incorrect because:
· The original gift adeems because the testator does not own the item specifically left by the will
-There is no cash or chattel alternative which can be given as there are no express words permitting this)
A testator owns two properties. A residential house and a holiday home that is let out.
The testator owns the residential house as joint tenants with their civil partner and owns the holiday home as tenants in common with their sister. The testator wants their civil partner to inherit the residential house and their sister to inherit the holiday home.
The rest of the estate (the residue) will be left to the testator’s children.
When you draft the testator’s will which of the following are required?
A) A clause giving the testator’s share of the residential house to their civil partner and another clause giving the testator’s share of the holiday home to their sister.
B) No express clauses are required to achieve the testator’s wishes.
C) A clause giving the testator’s share of the holiday home to their sister.
D) A clause severing the joint tenancy of the residential house.
E) A clause giving the testator’s share of the residential house to their civil partner.
C) A clause giving the testator’s share of the holiday home to their sister
(Correct. The holiday home is owned as tenants in common and therefore the testator’s share passes in accordance with the will and is not automatically inherited by the sister as the other co-owner. As we know the residue will not be left to the testator’s sister, an express clause giving the testator’s share of the holiday home to their sister is required. The residence owned as joint tenants will pass by survivorship to the surviving co-owner automatically. As the testator wants their civil partner to inherit in any event no express clause in the will is required to achieve the testator’s wishes.
The other options were incorrect because: - No severance of the joint tenancy is required as the testator wants the surviving co-owner to inherit the residential house - No express clause within the will is needed re the residential house; the law of survivorship achieves testator’s aim - An express clause giving the share of the holiday home to the sister is required as this interest will otherwise pass as part of the gift of residue to the testator’s children)
A testator made a valid will 2 years ago that contains the following clause:
“I give to my nephew absolutely and free of tax and costs of transfer all my personal chattels as defined by section 55(1)(x) of the Administration of Estates Act 1925”
The residue of the estate passes to the testator’s brother. There are no other relevant clauses within the will.
The testator died yesterday. Included among their assets is a van which the testator used only for business purposes, cash in the house worth £35 and a ring that was purchased as an investment. The testator wore the ring on special occasions a few times each year.
Which of the following is correct?
A) The testator’s nephew will receive the ring. The testator’s brother will receive the £35 cash and the van.
B) The testator’s brother will receive the ring, £35 cash and the van.
C) The testator’s nephew will receive the ring and the van. The testator’s brother will receive the £35 cash.
D) The testator’s nephew will receive the ring, £35 cash and the van.
E) The testator’s nephew will receive the van. The testator’s brother will receive the ring and £35 cash.
A) The testator’s nephew will receive the ring. The testator’s brother will receive the £35 cash and the van
(Correct. The definition of chattels excludes business assets (the van), cash (£35) and assets owned solely as an investment. The ring was not owned solely as an investment so will be included in the gift of chattels, the other items are not chattels so will pass under the gift of residue)
A testator leaves the following legacy in their valid will:
“I give the piano I own at the date of my death to my neighbour”
The testator’s estate will be subject to inheritance tax.
Which one of the following is correct?
A) The gift of the piano is made subject to tax but free of costs of transfer.
B) The executor may choose whether the tax and transfer costs are borne by the beneficiary or treated as a general administration expense.
C) The gift of the piano is made free of tax and costs of transfer.
D) The gift of the piano is made subject to tax and costs of transfer.
E) The gift of the piano is made free of tax but subject to the costs of transfer.
E) The gift of the piano is made free of tax but subject to the costs of transfer.
(Correct. Where a will is silent, a legacy in a will is made free of tax but subject to the costs of transfer.
The other options were incorrect because the general rules were incorrectly stated and the executors do not have a general discretionary power to decide where the costs fall)
A valid will contains the following gifts:
“I give my car to my sister”
“I give my collection of stamps to my brother”
“I give £100 to my cleaner”
The testator owned a blue car when the will was made but had replaced this with a red car by the time they died.
After the testator made the will they sold over half of the stamps in the collection but later added new purchases to the collection.
There are no other relevant provisions.
Which one of the following is correct?
A) The testator’s brother will receive only the stamps that were in the collection at the date of the will.
B) The gift to the testator’s sister will fail and she will receive nothing.
C) The testator’s cleaner at the date of the testator’s death will receive £100.
D) The testator’s sister will receive the red car.
E) The testator’s brother will receive only the new stamps purchased after the will was executed.
B) The gift to the testator’s sister will fail and she will receive nothing
(Correct. The use of the word “my” in the specific gift overrides the general rule in s.24 Wills Act 1837 and the property is identified as at the date of the will. As the testator no longer owns the blue car then this gift adeems and the testator’s sister receives nothing.
The other options were incorrect because:
The identify of people is established with reference to the date of the will
Gifts of collections comprise the assets that fall within the collection as at the date of the testator’s death whether acquired before or after the will was executed)
By her will a testator left a property, which was charged with a mortgage during her lifetime, to her son. The residue of the testator’s estate is left to her daughter.
The will is silent on the liability to pay any outstanding mortgage. The testator did not have a mortgage protection policy.
Which of the following is correct?
A) The mortgage must be repaid by the executors using the sale proceeds of the property before they distribute the balance to the testator’s son.
B) The testator’s son will inherit the property subject to the mortgage.
C) The burden of repaying the mortgage will be shared equally between the property and the residue of the estate.
D) The mortgage will be repaid from the residue of the estate.
E) The burden of repaying the mortgage will be shared proportionately according to value between the property and the residue of the estate.
B) The testator’s son will inherit the property subject to the mortgage
(Correct. The general rule under s.35 Administration of Estates Act 1925, which applies here in the absence of any express wording to the contrary, states that the property charged shall bear the primary liability for repayment.
The other options were incorrect because:
The executors are not required to sell the property - they can transfer the property to the beneficiary subject to the charge
The residue of the estate is not liable for repayment of the mortgage)
A valid will contains the following gift:
“I give £400 to each of my children who are alive at the date of my death contingent on them reaching the age of 21”
When the testator dies they have three children A (aged 24), B (aged 19) and C (aged 15).
Which of the children has a contingent interest under the will?
A) B and C only
B) C only
C) A only
D) None of them
E) All of them
A) B and C only
(Correct. The gift is made contingent on the children reaching the age of 21. A has satisfied this contingency by the time the testator dies so their gift vests immediately. The other two children have not satisfied the contingency so their gifts are contingent. That one is an adult and the other a minor makes no difference.
The other options were incorrect as A has a vested interest, and B and C are under the age of 21 so have not satisfied the contingency)
You are reviewing a will that includes a class gift to all of the testator’s grandchildren contingent on them reaching the age of 18. The will does not state when the class of ‘grandchildren’ closes.
When the testator made the will they had five grandchildren. When the testator died they had seven grandchildren, all of whom are currently minors.
When will the class of ‘grandchildren’ close?
A) As the testator’s will does not specify when the class of ‘grandchildren’ closes the clause fails for uncertainty.
B) The class is already closed and only includes the grandchildren the testator had when they died.
C) When it is no longer possible for any further grandchildren to be born.
D) When the first of her grandchildren reaches 18.
E) The class is already closed and only includes the grandchildren the testator had when they made the will.
D) When the first of her grandchildren reaches 18
(Correct. The class closing rules mean the class of beneficiaries is identified when the first beneficiary has a vested interest. This has not yet occurred as all of the testator’s grandchildren are under the age of 18. Once the first of them reaches 18 the class will close.
The other options were incorrect because:
- The clause will not fail for uncertainty (the class closing rules create certainty)
- No beneficiary has a vested interest at the date of her death
- Without express wording to suggest otherwise, the date of the will is not the correct reference point
- It is possible to close the class without having to wait for it to be impossible for further members to be born)
A testator recently died leaving a valid will that contains the following gifts:
“I give £40,000 to my sister”
“I leave the residue of my estate equally between my children”
The testator’s sister died a year ago and is survived by her only child (the testator’s niece). One of the testator’s three children died 5 years ago, leaving two of her own children (the testator’s grandchildren).
There are no other relevant provisions in the will.
Which one of the following correctly describes how the testator’s estate will be distributed?
A) The testator’s niece will receive £40,000. The testator’s two surviving children will each inherit 1/2 of the residue.
B) The testator’s two surviving children will each inherit 1/3 of the residue. The two grandchildren will each inherit 1/6 of the residue.
C) The testator’s two surviving children and two grandchildren each inherit 1/4 of the residue.
D) The testator’s two surviving children will each inherit 1/2 of the residue.
E) The testator’s niece will receive £40,000. The testator’s two surviving children will each inherit 1/3 of the residue. The two grandchildren will each inherit 1/6 of the residue.
B) The testator’s two surviving children will each inherit 1/3 of the residue. The two grandchildren will each inherit 1/6 of the residue.
(Correct. The gift to the testator’s sister will lapse because she predeceased.
S.33 Wills Act 1837 will not create an implied substitution in favour of the testator’s niece because the original gift was not made to the testator’s issue. S.33 does apply to the gift to the children. Each child would be entitled to a 1/3 share, but one child has pre-deceased the testator. Their 1/3 share will be inherited equally by their two children, who receive 1/6 each.
The other options were incorrect because: - The testator’s niece does not receive anything - The testator’s grandchildren are entitled to share between them the 1/3 of the residue their parent would otherwise have inherited)
Which of the following is the standard applied when assessing the claim of a surviving spouse or civil partner under the IPFDA 1975?
A) Such financial provision as it would be reasonable in all the circumstances for a husband or wife or civil partner to receive for his/her maintenance.
B) Such financial provision as it would be reasonable in all the circumstances for any applicant to receive for his/her maintenance.
C) Such financial provision as it would be reasonable in all the circumstances for a husband or wife or civil partner to receive whether or not that provision is required for his or her maintenance.
C) Such financial provision as it would be reasonable in all the circumstances for a husband or wife or civil partner to receive whether or not that provision is required for his or her maintenance.
(Correct: The surviving spouse/civil partner standard does not require the court to consider whether the provision is required for the applicant’s maintenance)
Which of the following is the court not expressly required to consider under section 3(1) IPFDA 1975?
A) The applicant’s age and the duration of their relationship with the deceased.
B) Any physical or mental disability of any applicant or beneficiary.
C) The financial resources and financial needs of any beneficiaries of the deceased’s estate.
D) The size and nature of the net estate of the deceased.
E) The financial resources and financial needs of any applicants.
A) The applicant’s age and the duration of their relationship with the deceased
(Correct: Although the court is required to consider any matter that they consider relevant in the circumstances, the applicant’s age and duration of their relationship with the deceased are not expressly referred to in section 3(1) IPFDA)
Which of the following most accurately reflects the guidelines applicable to spouses and civil partners?
A) The court must consider the applicant’s age and duration of the marriage or civil partnership, as well as any contributions made by the applicant to the welfare of the deceased (including any contributions made by looking after the home or caring for the family) and the liability of any other person to maintain the applicant. The court must also take into account what the applicant might reasonably have expected to receive on divorce or dissolution of the civil partnership.
B) The court must consider the applicant’s age and duration of the marriage or civil partnership, as well as any contributions made by the applicant to the welfare of the deceased (including any contributions made by looking after the home or caring for the family). The court must also take into account what the applicant might reasonably have expected to receive on divorce or dissolution of the civil partnership.
C) The court must consider the applicant’s age and duration of the marriage or civil partnership, as well as any contributions made by the applicant to the welfare of the deceased (including any contributions made by looking after the home or caring for the family) and whether, and if so to what extent, the deceased assumed responsibility for the maintenance of the applicant. The court must also take into account what the applicant might reasonably have expected to receive on divorce or dissolution of the civil partnership.
D) The court must consider the applicant’s age and duration of the marriage or civil partnership, as well as whether, and if so the length of time for which and the basis on which the deceased maintained the applicant, and the extent of the contribution made by way of maintenance. The court must also take into account what the applicant might reasonably have expected to receive on divorce or dissolution of the civil partnership.
E) The court must consider the applicant’s age and duration of the marriage or civil partnership, as well as the length of any period of cohabitation prior to the marriage or civil partnership. The court also considers the contributions made by the applicant to the welfare of the deceased (including any contributions made by looking after the home or caring for the family). The court must also take into account what the applicant might reasonably have expected to receive on divorce or dissolution of the civil partnership.
B) The court must consider the applicant’s age and duration of the marriage or civil partnership, as well as any contributions made by the applicant to the welfare of the deceased (including any contributions made by looking after the home or caring for the family). The court must also take into account what the applicant might reasonably have expected to receive on divorce or dissolution of the civil partnership
(Correct: The court considers all the factors above. There is no express requirement to consider whether the deceased maintained the applicant, or the length of their relationship prior to marriage/civil partnership (although these may be considered under the common guidelines if the court considers them relevant in the circumstances).)
A client seeks advice with regards the following clause in her father’s will.
“I give all of my chattels to my daughter and hope that she will distribute them in accordance with the instructions I have left with my will”.
There is a letter of instruction attached to the father’s will requesting that your client distributes his chattels equally between all of his grandchildren as she sees fit.
Which one of the following is correct?
A) If the client distributes the chattels to her children she would make a PET for IHT purposes.
B) By this clause the client is appointed as trustee of the chattels.
C) The client has an obligation to distribute the chattels to her children.
D) The effect of s 143 IHTA is to treat the gift of chattels to the client as being made free of IHT.
E) If the client distributes the chattels to her children she would make a disposal for CGT purposes.
E) If the client distributes the chattels to her children she would make a disposal for CGT purposes.
(Correct. The clause in the will is a precatory trust. The client is the beneficiary of the chattels. However, her father hoped that she would distribute them to his grandchildren. No legal trust is created so the client is not a trustee and has no obligation to comply with her father’s wishes. If she does give the chattels to the grandchildren, s 143 IHTA applies automatically to treat these gifts as if they were made by her father’s will (and not the client) for IHT purposes. There is no equivalent for CGT however, so the gifts will be a disposal by the client for CGT purposes.
The other options were incorrect because:
S 143 does not create a tax-free gift under the will
A gift of chattels made by the client to the grandchildren would ordinarily be a PET but the effect of s 143 is to treat these gifts as having been made by the will of the client’s father, and so she will not make a PET
No formal trust is created
The client has no obligation to comply with the wishes of her fathe)
A client seeks your advice following the death of her brother 18 months ago. By her brother’s will your client is due to inherit the whole of his estate, with a substitution in favour of her children if she did not inherit for any reason.
The client is unhappy that her brother did not include their step-sister in his will and now wants to change the distribution of his estate so that she keeps half and the other half passes to their step-sister.
The client does not want to be taxed for either IHT or CGT purposes as though she personally made this gift to her step-sister.
Which of the following is correct?
A) The client’s objectives can be met if she enters either a variation or disclaimer because the writing back effect for IHT and CGT purposes applies to both.
B) The client’s objectives can only be met if she disclaims her inheritance.
C) The client’s objectives can only be met if she varies her inheritance.
D) It is not possible for all of the client’s objectives to be met by either a variation or disclaimer.
E) It is not possible for the client to enter into either a variation or disclaimer because her brother died more than a year ago.
C) The client’s objectives can only be met if she varies her inheritance.
(Correct. A variation would achieve all of her objectives. By way of variation the client can re-distribute part of her inheritance and elect who should benefit instead. The writing back effect for both IHT and CGT will apply provided the variation is made in writing within 2 years following her brother’s death. The other options were incorrect because:
A disclaimer could not be used because the client cannot disclaim part of her inheritance, neither can she nominate the alternative beneficiary (under the will any disclaimed inheritance would pass directly to her children, not the step sister)
The time limit for varying the distribution is 2 years following death)
A client seeks your advice following the death of their father. The client recently inherited a share of her father’s estate but does not wish to keep her inheritance because she is wealthy in her own right. Instead your client wishes to pass part of her inheritance (a cash sum of £50,000) to her adult children in the most tax efficient manner. Inheritance tax was payable following her father’s death. You advise your client to enter a deed of variation.
Which of the following is the best advice for your client?
A) Your client should make an election for s 142 IHTA to apply to the variation.
B) Your client should make an election for s 142 IHTA and s 62 TCGA to apply to the variation.
C) There is no benefit to claiming the writing back effect under either s 142 IHTA or s 69 TCGA because no refund of tax can be claimed.
D) Your client should make an election for s 62 TCGA to apply to the variation.
E) Your client will need to seek the approval of her father’s PRs before she can vary her inheritance.
A) Your client should make an election for s 142 IHTA to apply to the variation.
(Correct. If the client enters a variation and claims the writing back effect for IHT under s 142 IHTA her father’s estate will be taxed as though £50,000 was given to the client’s children and the remainder to the client. There is no change to the IHT liability on her father’s estate as a result (none of the beneficiaries are exempt) therefore consent from her father’s PRs is not required. The advantage to claiming the writing back effect under s 142 is that the client will not be making PET and so avoids the risk of this failing if she died within 7 years.
The other options were incorrect because:
No writing back for capital gains tax purposes should be made because the subject matter of the variation is cash- which is exempt from CGT.
There is an advantage to making an election under s 142 IHTA – the gift of £50,000 to the client’s children is treated as having been made from her father’s estate and will not be a PET by the client.
There would be no change to the IHT liability following the variation so PR consent is not required.)
A man died and by his valid will left the whole of his estate to his adult children.
The man’s civil partner died before the man and left the man the whole of his estate.
Neither the man nor his civil partner had made any lifetime transfers.
The man’s estate was valued at £1.5 million, which includes his home worth £500,000.
What is the value of the inheritance tax nil rate band available for the man’s estate?
A) £500,000
B) £1,000,000
C) £325,000
D) £825,000
E) £650,000
B) £1,000,000
(Correct.
The man has his own NRB of £325,000.
The man’s PRs can also claim the TNRB in respect of his civil partner who died before him. We know that the man’s civil partner left all of his estate to the man. Therefore, the man’s civil partner did not use his own NRB because his whole estate qualified for civil partner exemption.
The RNRB of £175,000 also applies. The man left a qualifying residential interest (his home) to his lineal descendants (his children). As the man’s civil partner did not use his own RNRB, this can also be claimed by the man.
As neither of them made any lifetime transfers the maximum amounts are available.)
A man died yesterday leaving his whole estate to a life interest trust. The man’s spouse and children survive him. The man’s spouse is the life tenant of his will trust and his children are the remaindermen.
The man had not made any lifetime gifts.
His estate comprised his home worth £500,000 (free of mortgage) and various bank accounts totalling £120,000. The man’s debts and funeral expenses totalled £8,000.
In the tax year of the man’s death, the basic nil rate band is £325,000 and the main residence nil-rate band is £175,000.
How much inheritance tax will be payable on the man’s estate?
A) £78,000
B) £244,800
C) £114,800
D) £0
E) £130,000
D) £0
(Correct: The whole of the man’s estate passes to a life interest trust in which his spouse is the life tenant. Spouse exemption applies to the whole estate and no inheritance tax is payable. The other options were incorrect because spouse exemption was not applied)
A woman died and by her valid will left the whole of her estate to her adult children. The woman’s civil partner died before the woman and left the woman the whole of her estate.
Neither the woman nor her civil partner had made any lifetime transfers.
The woman’s home is worth £700,000 and she had savings of £400,000 and other assets worth £1.6 million.
What is the value of the inheritance tax nil rate band available for the woman’s estate?
A) £325,000
B) £650,000
C) £825,000
D) £1,000,000
E) £500,000
B) £650,000
(Correct.
The woman has her own NRB of £325,000.
The woman’s PRs can also claim the TNRB in respect of her civil partner who died before her. We know that the woman’s civil partner left all of her estate to the woman. Therefore, the woman’s civil partner did not use her own NRB because her whole estate qualified for civil partner exemption.
As neither made any lifetime transfers the maximum amounts are available.
The RNRB does not apply as the total value of the woman’s estate is above the threshold)
A man died yesterday leaving his whole estate to his son. The man had never married or entered a civil partnership and had not made any lifetime gifts.
His estate comprised his home worth £150,000 (free of mortgage) which he had lived in for over 20 years and various bank accounts totalling £340,000. He also owned a house worth £180,000 free of mortgage which was rented out to tenants and had never been his residence.
The man’s debts and funeral expenses totalled £20,000.
In the tax year of the man’s death, the basic nil rate band is £325,000 and the main residence nil-rate band is £175,000.
How much inheritance tax will be payable on the man’s estate?
A) £70,000
B) £130,000
C) £0
D) £78,000
E) £60,000
A) £70,000
(Step 1: The man’s cumulative total was 0 as he made no lifetime gifts.
Steps 2/3: The man’s taxable estate includes both properties and the bank accounts with a total of £670,000.
Step 4: The man’s debts and funeral costs which total £20,000 can be deducted, leaving £650,000.
Step 5: No exemptions or reliefs apply.
Step 6: The man can claim his own RNRB. No transferrable RNRB applies as he does not have a spouse who pre-deceased. His main residence is a QRI and it passes to his son (a lineal descendent) absolutely. The amount of the RNRB is £150,000 (capped at the value of the QRI). The let property is not a QRI so an RNRB can be claimed. The total RNRB is: £150,000. Once applied to his estate, £650,000 - £150,000 = £500,000 remains.
Step 7: The man’s basic NRB is £325,000 (his cumulative total was 0 – so no deduction is made). No transferrable NRB applies as he did not have a pre-deceasing spouse.
0 - £325,000 @ 0%. Balance of £175,000 (£500,000 - £325,000) @ 40% = £70,000)
A property was purchased as tenants in common by an unmarried couple in unequal shores. The woman owned 80% and the man owned 20%. The woman died last month and by her will leaves her share of the property to her son absolutely.
The current market value of the property is £100,000. There is no mortgage.
The woman’s estate will be subject to inheritance tax (IHT).
What will be the value of woman’s share of the property for IHT purposes?
A) £0 as the property passes by survivorship.
B) £80,000 - no discount is available because the couple were not married.
C) £50,000 less a discount to reflect the fact that that the property was co-owned.
D) £80,000 less a discount to reflect the fact that the property was co-owned.
E) £80,000 - no discount is available because the related property rules apply.
D) £80,000 less a discount to reflect the fact that the property was co-owned.
(Correct: The value of the woman’s share is £80,000 (she owned 80% of the total worth £100,000). The woman co-owned the property and a discount to reflect the fact that the property was co-owned can be applied.
The other options were incorrect because:
- The property does not pass by survivorship, but in any event, the value of the woman’s share is taxable whether owned as joint tenants or tenants in common
- The value of her share is proportionate to share she owned, not the number of co-owners. A 50/50 split applies to joint tenants and those owning as tenants in common in equal shares.
- The related property rules apply to married couples and are not relevant here.
- A discount is available because the couple were not married. It would not have been available if they were)
Is the following statement True or False?
“Where an executor is appointed by the will their power to act as PR derives from this appointment. Therefore, executors will not usually need to apply for a grant of representation.”
False
The authority for an executor to act as PR does derive from the will, whereas the authority for an administrator to act derives from the grant of representation. However, an executor will still need to apply for a grant of representation because many institutions will insist on seeing the grant as proof of the executor’s authority to act before releasing funds/assets to them.
Is the following statement True or False?
“Estate Administration is the process of collecting in the deceased’s assets and distributing them to the correct beneficiaries”.
False
Correct
This was an incomplete statement. The administration process also includes other obligations, including payment of the deceased’s debts and administration expenses.
Is the following statement True or False?
“Once the grant of representation is obtained the PRs have authority to collect in and deal with all the assets that the deceased owned when they died.”
False
Correct
The grant of representation confers power on the PRs to deal with the succession estate assets, ie those items passing under the will or under intestacy, and does not, for example, give PRs the right to have assets passing by survivorship transferred into their name.
True/False: An executor may also be a trustee of the estate they administer.
False
True
True
The executor of an estate may be expressly appointed in the role of trustee of any trust that arises following death, but that this is not always the case.
True/False: Acting as a PR confers a fiduciary duty and therefore a beneficiary should not act as PR because this will give rise to a conflict of interest.
False
True
False
The role of a PR is fiduciary in nature but there is no prohibition on a PR also being a beneficiary. There is no conflict of interest as the PR does not receive benefit in their capacity as PR.
True/False: A solicitor may be involved with the estate administration even if they have not been appointed as PR.
True
False
True
(A solicitor may become involved if they are appointed as PR by a will or if the PRs instruct a solicitor to carry out administrative services)
Is the following statement true or false?
“If an estate has not been fully administered 12 months after the deceased’s death the PRs will be in breach of their duty under s.44 Administration of Estates Act 1925?”
False
(Correct. There is no duty to complete the administration within the “executor’s year”. A PR is not obliged to distribute the estate before the one-year anniversary of death, although after this period they must be able to justify any delay)
Your client will be appointed as the PR of an estate. Your client has not yet made an application for a grant.
Which of the following most accurately describes the current statutory duties of your client?
A) A duty to report to HMRC about the estate assets and liabilities and pay any inheritance tax due and administer the estate according to the law.
B) There are no statutory duties that apply until the grant has been issued.
C) A duty to collect in the deceased’s assets, administer them according to law and keep estate accounts.
D) A duty to collect in the deceased’s assets and administer them according to law.
E) A duty to report to HMRC about the estate assets and liabilities and pay any inheritance tax due.
E) A duty to report to HMRC about the estate assets and liabilities and pay any inheritance tax due.
(Correct. Prior to the grant the PR is not able to collect in and administer the deceased’s assets and the primary duty the PR has is to report to HMRC and pay the IHT, both of which must be completed before the grant is issued)
You are advising a client who has been appointed the sole executor of his fathers estate. The executor has just obtained the grant of probate and does not act in a professional capacity.
The executor has asked whether he must complete the administration of the estate now he has started and whether he may buy one of the properties from the estate.
There are no relevant express provisions in the will.
Which of the following is correct?
A) The executor has a duty to administer the estate. The executor has the power as PR to sell estate assets. If he acted as the purchaser he would be in breach of his fiduciary duty, even if a fair price was paid (unless consent of the court or beneficiaries was obtained).
B) The executor has a duty to administer the estate. The executor has the power as PR to sell estate assets and may act as the purchaser provided the price paid was full market value and there is no loss to the estate.
C) The executor does not have to administer the estate but any administrative steps he does take must be done with due diligence. The executor has the power as PR to sell estate assets but if he acted as the purchaser, he would be in breach of his fiduciary duty even if a fair price was paid.
D) The executor does not have to administer the estate but any administrative steps he does take must be done with due diligence. The executor has the power as PR to sell estate assets and may act as the purchaser provided the price paid was full market value.
E) The executor has a duty to administer the estate. The executor has the power as PR to sell estate assets and fiduciary duties do not apply because he is not acting as a trustee.
A) The executor has a duty to administer the estate. The executor has the power as PR to sell estate assets. If he acted as the purchaser he would be in breach of his fiduciary duty, even if a fair price was paid (unless consent of the court or beneficiaries was obtained)
(Correct. An executor who accepts office has a duty to administer the estate in full under s.25 AEA. A PR is subject to fiduciary duties which include the duty to avoid a position of conflict. Acting as both buyer and seller of the estate assets (without court or beneficiary authorisation) would place him in a position of conflict and would therefore breach that duty, even if there was no loss suffered to the estate and fair market value was paid)
A testator died yesterday leaving an estate worth £3 million. The assets include £1 million cash in a current account (being the sale proceeds from a recent property sale). The current rate of interest is very low.
The PRs are concerned about their obligations in relation to the estate assets and believe the administration will not be completed for some time.
Which of the following statements is correct?
A) The PRs should retain the bank account as it is because this was the original asset owned by the deceased.
B) The PRs would only be subject to the statutory duty of care when exercising their power to invest the estate assets if they were acting in capacity as a trustee.
C) The PRs have a duty to invest the cash in the bank account to achieve a greater rate of return than the current rate of interest.
D) The statutory power to invest does not apply to the PRs unless an express trust has been created by the testator’s will.
E) The PRs have complete discretion to invest cash in the bank account in any kind of assets as if they were absolutely entitled.
C) The PRs have a duty to invest the cash in the bank account to achieve a greater rate of return than the current rate of interest
(Correct. As the administration is likely to take time the PRs have a duty to maintain the estate and actively invest to achieve better rates of return than are being paid in respect of the current account.
The other answers were incorrect because: - Although the general power of investment gives the PRs the power to invest as if they were absolutely entitled, their discretion is not absolute. They must invest having regard to the standard investment criteria and must seek and follow appropriate advice. - The statutory power to invest (s.3 Trustee Act 2000) does apply to PRs - There is no obligation to retain original assets - The statutory duty of care applies to the exercise of investment powers and is applicable to PRs as well as trustees)
A testator died recently leaving a cash legacy of £10,000 to his friend.
The executors have identified a small portfolio of quoted shares in the estate currently worth £8,000 that they would like to transfer to the friend in part satisfaction of his legacy. The shares have not been specifically gifted to anyone under the will and the residue of the estate passes to the testator’s spouse.
The will does not contain any express administrative provisions.
Assuming the shares do not subsequently increase in value to more than £10,000, which of the following would be the most appropriate advice for the executors?
A) Transfer the shares to the friend.
B) Transfer the shares to the friend plus a cash sum of £2,000.
C) Transfer the shares to the friend, but only if the spouse consents.
D) Transfer £10,000 to the friend. They have no power to transfer shares in partial satisfaction of the cash legacy.
E) Transfer the shares to the friend plus a cash sum equivalent to the difference in value between the shares (at the date of appropriation) and £10,000.
E) Transfer the shares to the friend plus a cash sum equivalent to the difference in value between the shares (at the date of appropriation) and £10,000.
(Correct. S.41 AEA provides the PRs with the power to appropriate assets in or towards a beneficiary’s entitlement. As the value of the shares is less than the legacy the PRs may appropriate the shares and then make a balancing cash transfer of the difference. The consent of the residuary beneficiary is not required as the shares were not specifically given to them)
By her will a testator left a legacy of £500 to her granddaughter (G), who was 16 at the date of T’s death. The will does not amend any of the statutory powers or include any express administrative provisions.
Assuming T’s PRs wish to distribute this amount as soon as possible, which of the following is the most appropriate course of action?
A) The PRs must wait until G reaches the age of 18 or marries before distributing the legacy.
B) The PRs must wait until G reaches the age of 18 before distributing the legacy.
C) The PRs cannot give the money to G directly but can appoint trustees of the legacy and pay the money to the trustees.
D) The PRs have discretion to pay the money to G if they consider she is responsible enough to receive the money direct.
E) The PRs have the power to pay the money to G because she is over the age of 16.
C) The PRs cannot give the money to G directly but can appoint trustees of the legacy and pay the money to the trustees
(Correct. By s.42 Administration of Estes Act 1925 the PRs may appoint trustees of a legacy and pay the amount of the legacy to the trustees, who hold on trust for the minor beneficiary. The trustees will provide confirmation of the receipt to the PRs and so the administration can be completed.
The other options were incorrect because: - There is no discretion to pay the money directly to a minor - The PRs do not have to wait until the minor reaches 18 or married - The power to pay the money to a beneficiary aged 16 or older must be conferred by the will and in this scenario we know that the will does not contain any administrative provisions)
You are advising a creditor of an estate who is concerned they will not receive money they are owed.
Assuming there are sufficient funds available to meet all debts and legacies but the creditor is not paid, which of the following is correct?
A) There is no cause of action that can be brought against the PRs as their duties are only owed to the beneficiaries of an estate.
B) The creditor may only bring a claim against the PRs if the administration of the estate is not yet complete and enough money remains to pay the debt.
C) If the creditor cannot bring a claim against the PRs there is no alternative option for them to pursue.
D) The creditor may bring a devastavit claim against the PRs on the grounds of maladministration.
E) The creditor may bring a claim against the PRs on the grounds of breach of fiduciary duty.
D) The creditor may bring a devastavit claim against the PRs on the grounds of maladministration
(Correct. A claim against a PR is referred to as a devastavit. Where the estate has not been distributed to those who are entitled to it the grounds for a claim would be maladministration.
The other options were incorrect because:
- Duties are owed to both beneficiaries and creditors
- The wrongdoing would not amount to a breach of fiduciary duty
- An unpaid creditor could also claim against the estate beneficiaries
- The PRs owe a personal liability to a creditor who was not paid from the estate)
You are advising a lay executor about their duties. The deceased left a will that includes an express clause stating “no executor shall be personally liable for any action or inaction taken in the course of the administration”.
Which of the following is correct?
A) The clause is effective and the executor will not have any personal liability.
B) The clause is not effective as it is not possible to limit the liability of an executor.
C) The clause is not required because the executor is not acting in a professional capacity.
D) The clause would not protect the executor from loss resulting from an honest mistake.
E) Despite the express clause in the will the executor would remain liable for fraud.
E) Despite the express clause in the will the executor would remain liable for fraud.
(Correct. A clause which limits the executor’s liability is enforceable but not to the extent it attempts to avoid liability for fraud.
The other options were incorrect because:
- it is not possible to remove all personal liability irrespective of how the executor behaves.
- both lay and professional executors have personal liability
- limitation of liability clauses are enforceable in respect of an honest mistak)
The PRs of an estate are due to distribute assets to the deceased’s children. They have been in contact with the children of the deceased’s marriage but are concerned that the testator could have fathered other children who the PRs and immediate family are unaware of.
Which of the following would help protect the PRs from personal liability should any additional children approach the PRs for a share of the estate after it has been distributed?
A) Compliance with the s.27 Trustee Act 1925 notice procedure.
B) Application to court for an administration action.
C) Retaining funds and delaying the completion of the administration indefinitely.
D) Making a payment into court.
E) Application to court for a Benjamin Order.
A) Compliance with the s.27 Trustee Act 1925 notice procedure
(Correct. S.27 notices are intended to help protect the PRs from personal liability to unknown creditors and beneficiaries. The other options are possible steps a PR might take if they know about a beneficiary but cannot locate them)
A deceased died leaving a valid will that appoints their brother and sister as joint executors.
The will gives all of the estate to the deceased’s brother.
The deceased is survived by their sister and she is willing to act. The deceased’s brother pre-deceased him so some of the estate will pass under the intestacy rules.
Which is the correct grant?
A) Grant of Representation
B) Grant of double probate
C) Grant of letters of administration (with will)
D) Grant of letters of administration
E) Grant of probate
E) Grant of probate
(Correct. The deceased left a will that appoints an executor. It does not matter that one of the executors has pre-deceased, the remaining executor can apply. It does not matter that the will fails to dispose of all of the deceased’s assets)
A testator died leaving a valid will appointing their father as executor. The will gives all of the estate to the testator’s brother. The testator is survived by their brother, but their father has pre-deceased.
Which is the correct grant?
A) Grant of probate
B) Grant of letters of administration (with will)
C) Grant of Representation
D) Grant of letters of administration
E) Grant of double probate
B) Grant of letters of administration (with will)
(Correct. The deceased left a will which does not appoint any executors who can act)
A deceased died leaving a valid will that appoints their brother as executor. The deceased’s will leaves a property to their spouse and the rest of the estate to their two minor children.
The deceased is survived by their brother and children. Their spouse has pre-deceased and the deceased has died partially intestate.
Which is the correct grant?
A) Grant of Representation
B) Grant of letters of administration
C) Grant of letters of administration (with will)
D) Grant of probate
E) Grant of double probate
D) Grant of probate
(Correct. The deceased left a will that appoints an executor. It does not matter that the deceased died partially intestate and only one executor is required even where minor interests arises)
