Wills - Validity And Entitlement

Question 1

How do property pass under will and intestacy?

Answer 1

If jointly owned house, it will NOT< becuase it goes to the surviving tenant through survivorship

If insurance policy, it goes to PR, unless specifically for someone - written on trust for someone else.

Pension benefits: lump sum, paid by trustees of pension fund to members of family or dependents.

Trust property: if equitable interest, comes to an end (life interest), or devolved according to terms of trust.

Question 2

What is a revocation clause?

Answer 2

Revokes prior wills before it. Important to say at beginning of will, to make sure no others have effect

Question 3

What are the different types of gifts that can be found in a will?

Answer 3

Specific gift (specific item)
General gift (if general item, can find item and source it through funds from estate)- purchase shares etc)
Demonstrative gift (general in nature, but is for a specific fund (i give X 500, from my nationwide savings account)
Pecuniary gift (gift of money)
Residuary gift (leaves the rest of estate to X)

Question 4

What are the 3 requirements for a valid will?

Answer 4

Capacity
Intention
Formalities

Question 5

What is the test for capacity for a valid will?

Answer 5

An individual must be age 18 or over, and mist have requisite mental capacity.

Testator must understand nature of act, extent of property, and moral claims.

Must have capacity at the TIME they execute thier wills.

Question 6

What is an exception to the capacity rules to make a valid will?

Answer 6

Parker v Felgate

A will can be valid if the testator has capacity when giving instructions for the will, even if they lose capacity by the time the will is executed. Is valid if instructions were re given to solicitor, who prepared the will with these instructions.

Question 7

What is the golden rule, for the capacity for a valid will?

Answer 7

If the testator lacks capacity, the will is VOID.

A solicitor preparing a will for a testator whose mental state is in DOUBT, should follow gate golden rule: should ask a medical practice r to provide a written report confirming that the testator has testamentary capacity.

Question 8

Who has the burden of proof for the capacity of the testator for a valid will?

Answer 8

General rule ist hat for the person who s asserting that a will is valid to prove it.

HOWEVER, huge burden on executors. Therefore, the question of whether the will is value arises after testators death when executors apply for grant of probate.

Question 9

What is the presumption of capacity?

Answer 9

Despite the general rule, executors do not usually ave to prove capacity, becuase there is a presumption that the testator satisfies the mental capacity test.

Question 10

What is the meaning of intention for the validity of a will?

Answer 10

When the will is signed, the testator must have both general and specific intention.

Means the testator must intend to make a will and must intend to make that particular will.

Question 11

Who has the burden of proof for intention of the testator during will making ?

Answer 11

General rule is that it is for the person asserting that a will is valid, to PROVE IT. Hwoever, it is again not necessary to prove it, becuase the presumption of knowledge and approval arises.

Question 12

What is the presumption of knowledge and approval?

Answer 12

Testator who has capacity and has read and executed the will is presumed to have requisite knowledge and approval.

Question 13

When does the presumption of knowledge or approval NOT apply?

Answer 13

When the testator is blind/illiterate/not signing personally

Suspicious circumstnaces

Force, fear, fraud, undue influence, mistake.

Question 14

What are the formalities needed for execution of will?

Answer 14

Section 9 of the wills act

It is in writing, signed by testator or by someone else in presence and direction

Appears that the testator intended by his signature to give effect

Signature is made or acknowledged by testator in presence of 2 or more witnesses at the same time, (mental and physical) and,

Each witness attest and signed the will and acknowledges the signature, in the presence of the testator.

Question 15

What is the procedure for remote witnessing?

Answer 15

Witnessing per-recorded videos NOT permitted, must be live.

Witnesses and testator can be at differnet locations

Testator must physically sign will, electronic are not permitted.

Will must then be posted to witnesses, who must physically sign the wll int he virtual presence of the testator.

Question 16

What are privileged wills?

Answer 16

One exception to the rule of s9.

Actual military service or by mariner or seaman can be made in any form - including a mere oral statement.

Only requirement is that the testator intends to dispose of his property after his death.

Question 17

Who has the burden of proof of correct formalities of will?

Answer 17

Person who is asserting a will is valid, has to prove it.

Question 18

What is the presumption of due execution?

Answer 18

Arises if the will includes a clause that recites that s 9 formalities were observed. This is an attestation clause.

The presumption means that anyone challenging the validity of the will, has the burden of PROVING this is the case.

Question 19

What is an affidavit of due execution?

Answer 19

HMCTS will require this (witness statement verified by statement of truth), from witness. To ensure that the will was correctly formed.

Question 20

What are the 2 basic presumptions when interpreting a will?

Answer 20

Non-technical words bear their ORDINARY meaning.

Technical words are given their technical meaning.

These can be rebutted from the will if it is clear they meant something different.

Question 21

How is the testators intention established?

Answer 21

By looking at the words in the will itself. Basic rule is that the court is not prepared to consider other evidence.

Question 22

What are the limited circumstnaces in which the court will look at external or extrinsic evidence in order to ascertain testators intentions?

Answer 22

Allows extrinsic evidence, if the will is meaningless, languages used is ambiguous on the face of it, or other evidence shows ambiguous in light of surrounding circumstances.

Question 23

What is s 21 of Administration of Justice Act?

Answer 23

Extrinsic evidence can be used to interpret testators intentions.

2 step process. Case must first come within 1 of 3 options, then court will look at extrinsic evidence.

Question 24

What is rectification?

Answer 24

Changing the will. The court has NO POWER to rewrite the will so that is accords with opinion of other, no power to write a differnet will.

Court DOES however, have power to rectify a will. This arises where the testators intentions are clear, but wording of the will does not carry them into effect.

Question 25

When will the court rectify a will?

Answer 25

If the court is satisfied that a will is so expressed that it fails to carry out testators intentions, in consequence of:

Clerical error

Failure to understand his instructions.

Question 26

How does property pass under the will? WHEN does it pass?

Answer 26

The basic rule is that assets are determined according to those in existence at the date of DEATH. The will speaks “from the date of death”.

As if it had been executed immediately before death.

Question 27

What is the general rule to identify beneficiaries?

Answer 27

Will speaks from date of EXECUTION.

As far as people arr concerned, the will speaks from date of execution.

Question 28

What is the general rule for identifying beneficiaries who are family relationships?

Answer 28

If somene said “my children” it is necessary to determine who fulfils this.

General rule: such gifts are taken to refer to blood relationships, however will not apply if will provides otherwise.

Question 29

What are the special rules relating to children when identifying beneficiaries in a will?

Answer 29

Or al meaning of “issue” is direct descendants of any generation.

Adopted children are usually classed as children.

Question 30

How can a gift in a will FAIL?

Answer 30

Through uncertainty (if not possible to identify subject matter of gift)

Beneficiary witnesses the will (if a beneficiary or their spouse, acts as a witness, the gift FAILS). However still a competent witness, therefore still valid WILL.

Divorce or dissolution (declared void, as if the partner had died on the date of divorce), therefore will go back to estate.

Ademption (specific legacy wil fail if the testator NO LONGER OWNS that property at death. Gift is a deemed)

Lapse (gift will fail, or lapse, if beneficiary dies BEFOER testator, intestacy rules)

Question 31

What happens if the testator disposes of a property but has one of the same description at time of death?

Answer 31

It is held that the presumption is that the testator intended that the specific gift was to be of the particular asset they owned at date of will, therefore ADEEMED.

Question 32

What is section 184 of LPA 125?

Answer 32

If the deaths of testator and beneficiary occur very closely together, it is VITAL to work out who died first.

Law of succession does not accept the possibility that 2 people die at exactly same time.

S 184 provides that the elder of the 2 is DEEMED TO DIE FIRST. If testator was older than beneficiary, the gift takes effect.

Question 33

What are survivorship clauses?

Answer 33

Gifts in wills are conditional upon he survival of the beneficiaries for a specific period of time.

Eg 28 days after testators death

These prevent a gift from taking if a beneficiary survives for only a short amount of itme.

Question 34

What happens to a lapse of a gift for more than one person?

Answer 34

If a gift by will is to 2 or more people as joint tenants, it will not lapse until ALL DONEES die before testator.

If one dies, it vests into the other and the whole gift passes to the survivors.

If gift contains severance words- eg, in equal shares, then this is not the case, the the one who dies will lapse, and one who survives will take shares of their half.

Question 35

What is s 33 of wills act?

Answer 35

Exception to doctrine of lapse applies to all gifts by will to the testators children or direct descendants, UNLESS contrary intention is shown.

This means that where a will contains a gift to a testators child, and that beneficiary dies before testator, leaving issue of THEIR OWN, the gift does not lapse, but PASSES to the eneficairiys issue. In same shares as parent would have.

Question 36

What is forfeiture of a gift in a will?

Answer 36

A person should not profit from their own crime.

If person has unlawfully killed, then they will not benefit from teh estate.

The rules apply to murder, manslaughter, aiding and abetting suicide, and causing death by careless driving.

Rule does NOY apply when killed was insane.