Wills & Trusts

Question 1

What property passes outside a will?

Answer 1

Joint property
Insurance policies (if in trust for specified individuals)
Pension benefits
Trust Property

Question 2

In what order do solicitors advice/deal with property of a deceased?

Answer 2

Property passing outside the will
Property passing under the will
Any property not disposed of

Question 3

What are the five type of gifts under a will?

Answer 3

Specific
General
Demonstrative
Pecuniary
Residuary

Question 4

What are the requirements of a valid will?

Answer 4

Capacity
Intention
Formalities

Question 5

In most circumstances how old must and individual be to make a valid will?

Answer 5

18

Question 6

What must a testator understand to have capacity?

Answer 6

The nature of their acts
The extend of their property
Who a person would usually leave gifts to

Question 6

Can a will be valid if a testator had capacity when they gave instructions for a will but did not have capacity when it was executed?

Answer 6

Yes

Question 7

What is the presumption of capacity?

Answer 7

Executors do not have to prove capacity because there is a presumption that the testator satisfied the mental capacity test. If the will is rational on its face and the testator showed no evidence of mental confusion at the time of making the will.

Question 7

What must a testator understand to have capacity?

Answer 7

The nature of their acts
The extend of their property
Who a person would usually leave gifts to

Question 7

Can a will be valid if a testator had capacity when they gave instructions for a will but did not have capacity when it was executed?

Answer 7

Yes

Question 8

Can a will be valid if a testator had capacity when they gave instructions for a will but did not have capacity when it was executed?

Answer 8

Yes

Question 8

What is the presumption of capacity?

Answer 8

Executors do not have to prove capacity because there is a presumption that the testator satisfied the mental capacity test. If the will is rational on its face and the testator showed no evidence of mental confusion at the time of making the will.

Question 9

What must a testator understand to have capacity?

Answer 9

The nature of their acts
The extent of their property
Who a person would usually leave gifts to

Question 10

If there is doubt over the capacity of testator when making a will, what should the solicitor do?

Answer 10

Ask a medical practitioner to provide a medical report confirming capacity and ask them to witness the will.
The solicitor should record their own view in file note.

Question 11

What is the presumption of knowledge and approval?

Answer 11

A testator who has a capacity and has read the will is presumed to have the requisite knowledge and approval.

Question 11

If either of the presumptions to a valid will don’t apply, who has the burden of proving its validity?

Answer 11

• The person putting forward the will (executor)

Question 12

When does the presumption of knowledge and approval not arise?

Answer 12

• Testator blind/illiterate/ not signing personally
• Suspicious circumstances

Question 12

When does the presumption of knowledge and approval not arise?

Answer 12

• Testator blind/illiterate/ not signing personally
• Suspicious circumstances

Question 12

If the presumptions of capacity exists what must a person prove to challenge the will?

Answer 12

Force
Fear
Fraud
Undue influence

Question 13

When does the presumption of knowledge and approval not arise?

Answer 13

• Testator blind/illiterate/ not signing personally
• Suspicious circumstances

Question 13

If the presumptions of capacity exists what must a person prove to challenge the will?

Answer 13

Force
Fear
Fraud
Undue influence

Question 14

What are the formalities of a will?

Answer 14

• The will must be in writing
• The will must be signed
• The testator must have intended to give effect to his will by his signature
• The signature must be witnessed

Question 15

What is the presumption of due execution?

Answer 15

If the will includes a clause which recites that the s9 formalities were observed known as an attestation clause it is presumed to have been duly executed.

Example ‘signed by X in our joint presence and then by us in hers’.

Anyone challenging the validity of the will on this ground has the burden of proving it was the case.

If a will does not have an attestation clause, the probate registry will be require an affidavit of due execution from a witness or anyone who was present during execution.

Question 16

What are the two basic presumptions of will interpretation?

Answer 16

1. Non-technical words bear their ordinary meaning
2. Technical words bear their technical meaning.

Question 17

Can extrinsic evidence be used to interpret a will?

Answer 17

Only if the any part of the will is meaningless, or the language used is ambiguous, or evidence shows the wording is ambiguous in light of surrounds circumstances.

Question 17

Can a court rectify a will?

Answer 17

ONLY if a court is satisfied that a will is so expressed that it fails to carry out the testators intentions in consequence of either:
1. a clerical error; OR
2. of a failure to understand his instructions

it may order that the will should be rectified.

Question 17

Can extrinsic evidence be used to interpret a will?

Answer 17

Only if the any part of the will is meaningless, or the language used is ambiguous, or evidence shows the wording is ambiguous in light of surrounds circumstances.

Question 17

Can extrinsic evidence be used to interpret a will?

Answer 17

Only if the any part of the will is meaningless, or the language used is ambiguous, or evidence shows the wording is ambiguous in light of surrounds circumstances.

Question 17

Can a court rectify a will?

Answer 17

ONLY if a court is satisfied that a will is so expressed that it fails to carry out the testators intentions in consequence of either:
1. a clerical error; OR
2. of a failure to understand his instructions

it may order that the will should be rectified.

Question 17

Assets gifted in a will are normally determined according to those in existence at what time?

Answer 17

The date of death

Question 17

Can a court rectify a will?

Answer 17

ONLY if a court is satisfied that a will is so expressed that it fails to carry out the testators intentions in consequence of either:
1. a clerical error; OR
2. of a failure to understand his instructions

it may order that the will should be rectified.

Question 17

Property passing in a will are normally determined according to those in existence at what time?

Answer 17

The date of death

Question 17

Can extrinsic evidence be used to interpret a will?

Answer 17

Only if the any part of the will is meaningless, or the language used is ambiguous, or evidence shows the wording is ambiguous in light of surrounds circumstances.

Question 18

References to beneficiaries are usually construed as to people alive at what time?

Answer 18

The date of execution

Question 19

Reference to ‘my children’ means

Answer 19

Testator’s own children unless specified otherwise (not step-children). Adopted children would be included.

Question 20

If a gift to a charity fails what powers do the court have?

Answer 20

If the gift is exclusively for charitable purposes the court can direct which charity is to benefit

Question 21

If a gift is made to a spouse with a substitution provision to someone else if the spouses pre-deceases a testator, what would happen if the testator and the beneficiary divorced?

Answer 21

The gift would go to the substitutional beneficiary because divorce treats a spouse as if they had died.

Question 21

Why is a gift of something like “my car” problematic?

Answer 21

Generally gifts under a will speak from the date of death. However a contrary intention may be shown in the will. A contrary intention may be inferred if the testator buys a new care before they die. i.e. they intended the gift to be of the previous car?

If a gift of property is capable of increase or decrease e.g., ‘all my jewellery’, it will usually be okay.

Question 21

What is the effect of a codicil on specific gifts that have been replaced?

Answer 21

A codicil is effectively republishing the will. So if a gift of ‘my gold watch’ is made in 1970 and the testator loses the watch, it will adeem. However, if the testator subsequently bought a new gold watch and then executes a codicil, the gift will be valid.

Question 22

Importance of jointly or in equal shares

Answer 22

If a gift is made jointly e.g., I give £10,000 to ‘A and B jointly’ and not all of them survive, the survivors will take it all. if made in ‘equal shares’ survivors will only take their share.

If the gift is to a class e.g., ‘all my children if more than one’ there will be no lapse unless all of the class predecease the testator.

Question 22

Effect of disclaiming or forfeiting a gift.

Answer 22

Beneficiary treated as pre-deceasing so could still pass per stirpes.

Question 23

Effect of disclaiming or forfeiting a gift.

Answer 23

Beneficiary treated as pre-deceasing so could still pass per stirpes.

Question 24

Effect of disclaiming or forfeiting a gift.

Answer 24

Beneficiary treated as pre-deceasing so could still pass per stirpes.

Question 24

Three main occasions when IHT may be charged?

Answer 24

Death
Lifetime gifts made to people 7 years before death
Lifetime gifts made to a company or into a trust

Question 24

Four steps to calculation of IHT

Answer 24

1. Identify the transfer of value
2. Find the value transferred
3. apply any relevant exemptions and relief
4. Calculate tax

Question 25

What is the nil rate band?

Answer 25

350,000

Question 25

What is the nil rate band?

Answer 25

350,000

Question 25

What is business property relief?

Answer 25

Operates to reduce the value transferred by a transfer of value of relevant business property by a certain percentage.

100%
* a business or an interest in a business (including a partnership share)
* company shares that are not listed on a recognised stock exchange
50%