Wills - Validity of Wills and Intestacy Flashcards
What are the validity requirements of wills ?
1) Testamentary Capacity
2) Formal requirements
Testamentary Capacity - Presumption of capacity
- A testator is presumed to have the necessary mental capacity make a will unless someone challenging the validity of the will can point to a lack of capacity. The testator must have understood:
- The nature of their acts;
- The extent of their property; and
- Moral claims (Who a testator would normally give gifts to).
- A will can be valid if the testator has capacity when they give instructions for the will even if they lose capacity by the time the will is executed.
Testamentary Capacity - What is presumption of knowledge and approval and where does it not apply ?
A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval. However, this presumption does not apply in the situations listed below.
- Testator blind/illiterate/not signing personally
- Suspicious circumstances
- Force, fear, fraud, undue influence and mistake
Validity - Presumption of due execution
Presumption arises if there is an attestation clause in the will stating that the s 9 formalities were observed.
Formal validity requirements of wills
For a will to be validly executed it must be:
- In writing
- Signed by the testator
- Signed by the testator in the presence of two or more witnesses; The witnesses do not need to see the contents of the will or even be told they are witnessing a will.
- Signed by each witness in the presence of the testator (but not necessary to be in presence of the other witness).
- An attestation clause may be included to confirm the above requirements, such as “signed by the testator in our presence and then by us in his”. If an attestation clause isnt included, proof (affidavit of due execution) must be offered that these requirements were actually met.
Effect of alterations made to wills both before and after execution
- A will can be amended after it executed only if the change is witnessed in the same manner in which the entire will is witnessed.
- Initials of the testator and the witnesses in the margin next to the amendment will suffice.
- If gift crossed out is legible, they will be read as forming part of the will.
- If the new gift/amend is signed and witnessed, it will succeed.
- If the original gift is unreadable, the gift will fail.
What is a codicil
A codicil is a document, executed in the same way as a will, which supplements an existing will.
What is a codicil used for
- A codicil can be used to amend, add to or revoke in part, an existing will.
- A codicil can be used to revive a will which has previously been revoked
What means revocation ?
- Revocation is the formal act of cancelling or withdrawing a will.
- The effect of revocation is to nullify the will, either as a whole or in part.
Methods of revocating a will ?
There are three situations in which a will can be revoked:
- by a later will or codicil;
- by destruction; or
- by marriage/forming a civil partnership
Revocation by destruction
- A will may be revoked by ‘burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same’ (s20 Wills Act 1837).
- Physical destruction is required: symbolic destruction (eg simply crossing out wording or writing ‘revoked’ across the will) is not sufficient, although if a vital part (eg the signature) is destroyed, this partial destruction may be held to revoke the entire will.
Effect of marriage and divorce of a testator
Marriage:
a) Will is automatically revoked unless the testator was expecting to marry a particular person
Divorce:
a) Former spouse treated as having died on the date of divorce and gifts to the former spouse are revoked.
b) Appointment of the former spouse as executor or trustee is invalid
c) rest of the will is valid
Basic rule as to gifts and beneficiaries
Gifts: At the time of death
Beneficiaries: At the time of execution
What are the different categories of gifts
1. Specific legacy
- Is a gift of a specified part of the estate.
- If the specified property is no longer in the estate when the testator dies, the gift fails (adeems) and the named beneficiary does not take anything.
2. General legacy
- It is a gift that doesn’t identify a specific item, such as a gift of “a BMW 3 series car” instead of “my BMW car”.
- Here it doesn’t matter if there is no longer a BMW 3 series car in the estate at the time of the testators death. As if this is the case the PR will use the estate funds to purchase the item.
3. Pecuniary legacy: It is a gift of cash
4. Residuary legacy: It is a gift of everything that’s left in the deceased’s estate after giving the specific, general and pecuniary gifts and paying all expenses of administering the estate.
How do gifts fail ?
1) Uncertainty (subject matter or recipient)
2) Beneficiary Witnesses the Will
3) Divorce or Dissolution
4) Ademption: testator no longer owns that property at death
Lapse of gifts
Lapse: Failure
- If a legacy lapses, the property falls into residue, unless the testator has provided for a substitutional gift.
- If a gift of residue lapses, the property passes under the intestacy rules
- If a gift is made ‘to A and B jointly’ and A dies before the testator, the whole gift passes to B.
- If the gift contains words of severance, for example ‘everything to A and B in equal shares’, this principle does not apply. If A dies before the testator, A’s share lapses and B takes only one share.
Lapse of gifts - Section 33 Wills Act 1837
- If a beneficiary of a gift is the testator’s child and they predecease the testator, the deceased beneficiary’s gift does not lapse and it passes to their children (if they have children).
- This rule also applies when the issue of the testator is entitled to the legacy under the intestacy rules.
What is the testator’s spouse’s entitlement under intestacy rules ?
Spouse with no issue
- The highest person with a claim to the estate is the persons spouse.
- The WHOLE estate passes to the spouse.
- A spouse must survive the deceased by 28 days.
Spouse with issue
- The spouse will take personal chattels absolutely (all tangiable moveable property other than money, investment, stock and property for business);
- Statutory legacy of £322,000 (if the decendant had that much money); and
- Half of the remaining property.
- The children split the remainder.
Rank of entitlement under intestacy rules
- spouse (must survive 28 days)
- children (adopted children included). If a child predeceases the parent but has a living issue, then the issue will take their parents share on trust.
- parents
- siblings
- half siblings
- Grandparents
- Uncles/aunts
- The crown
What are the properties passing outside the estate ?
1) Joint property (passes by survivorship)
2) Life assurance policies
3) Pension scheme benefits
4) Trust property
What means Intestacy and Intestacy rules
Default rules that apply when someone does not have a will or the will does not cover all of their stuff.
Burden of proof - Challenging the will due to lack of capacity
Burden is on the challenger to prove lack of capacity.
Burden of proof - Challenging the will due to lack of knowledge and approval
Suspicious circumstances
- Burden is on the executor or person putting forward the will
- If knowledge and approval cannot be proven, the will is invalid and intestacy rules will apply.
Undue influence, force, fraud
- Even if knowledge and approval is proved, it can be challenged on these grounds.
- Burden is on the challenger and it is a difficult burden to prove
- Failure to prove can result in penalties on the challenger.
Provisions to include when drafting a will
- Appointment of executor
- Include provisions relating to both pecuniary and specific legacies
- Substitute beneficiaries to prevent lapse
- Burden of any IHT payable, including costs and charges
- Payment of debts and liabilities (where to be from)
- Substitutional gifts to avoid partial intestacy
- Survivorship clause
- Appoint guardians if testator has infant children.
