Unit 1: Validity of Wills, Property Passing on Death, and Intestacy

Flashcards covering the validity of wills, execution formalities, capacity and intention tests, property passing outside the will, and statutory intestacy distribution rules.

How does property held by beneficial joint tenants pass upon the death of one joint tenant?

It passes automatically by survivorship to the surviving joint tenant(s), completely bypassing the deceased's will or the intestacy rules.

What is the correct order of analysis when distributing an estate upon death?

(a) Property passing outside the will, (b) property passing under the will, and (c) any residue not covered by the will passing under intestacy.

What is the difference between a specific gift and a general gift in a will?

A specific gift is a named, distinguished item from the rest of the estate, whereas a general gift is an item identified by description that the personal representatives must purchase using estate funds if the deceased did not own it at death.

What occurs if the designated fund for a demonstrative gift is insufficient or nonexistent at death?

The shortfall is treated as a general gift and is paid out of the general estate funds.

What are the three cumulative legal requirements for a will to be valid?

Capacity, intention, and compliance with statutory formalities under section 9 of the Wills Act 1837.

What three elements make up 'soundness of mind, memory and understanding' under the Banks v Goodfellow (1870) capacity test?

The testator must understand: (a) the nature and effect of making a will, (b) the extent of the property being disposed of, and (c) the moral claims they ought to consider (though they retain the freedom to reject them).

What exception to the rule that testamentary capacity must exist at execution was established in Parker v Felgate?

A will remains valid if the testator had capacity when giving instructions to a solicitor, the will was drafted according to those instructions, and at the time of execution the testator appreciates that they are signing a will drafted according to their instructions (even if they lack full capacity).

What did the court confirm in Baker v Hewston [2023] regarding the test for testamentary capacity?

It confirmed that the Mental Capacity Act 2005 (MCA) statutory test does not apply to wills; the Banks v Goodfellow test remains the definitive legal standard, though the MCA test can serve as a cross-check.

What does the 'golden rule' from Kenward v Adams recommend when a testator's capacity may be in doubt due to age or illness?

The solicitor should obtain a written report from a medical practitioner confirming capacity, have the doctor witness the will, and record their own view in a detailed file note.

Under what circumstances does the presumption of knowledge and approval fail to arise?

When the testator is blind, illiterate, or has the will signed by another person on their behalf, or where there are suspicious circumstances surrounding the preparation or execution of the will.

Why was the will declared void in Gill v Woodall?

Even though the beneficiary (RSPCA) did not participate in preparation, unusual circumstances existed (the testator suffered from severe anxiety and agoraphobia, with no evidence the will was read or explained), so the presumption of knowledge and approval did not apply.

What standard of proof must a challenger meet to invalidate a will on the ground of undue influence?

The challenger must positively prove actual coercion or duress that overcame the testator's free choice; mere persuasion does not suffice, and there is no presumption of undue influence.

What constitutes a valid signature by the testator under section 9 of the Wills Act 1837?

Any mark intended to represent the testator's name (such as 'Your loving mother' in In the Estate of Cook, thumbprints, or crosses), or the signature of another person in the testator's presence and at their positive, discernible direction.

What is the consequence under section 15 of the Wills Act 1837 if a beneficiary (or their spouse/civil partner) witnesses the will?

The will remains valid, but the gift to that witness (or their spouse/civil partner) fails.

During what exact date range was remote witnessing of wills via video link permitted as a Covid measure?

28 September 2020 to 31 January 2024.

What criteria must be met to execute a privileged will under section 11 of the Wills Act 1837?

The testator must be in actual military service or be a mariner or seaman at sea; such wills are valid in any form (including oral) provided an intention to dispose of property is shown.

What liability did the solicitor face in Humbleston v Martin Tolhurst Partnership?

The firm was held liable in negligence for a disappointed beneficiary's lost inheritance after incorrectly confirming that an unsigned will was in order.

In what three situations do the intestacy rules under the Administration of Estates Act 1925 (AEA 1925) apply?

Total intestacy where no will exists or all wills were revoked; total intestacy where a will exists but is invalid or disposes of nothing; and partial intestacy where a valid will fails to dispose of the entire estate.

What legal rights do cohabitants have under statutory intestacy rules?

Cohabitants have no entitlement under the intestacy rules, regardless of how long the relationship has lasted.

What does a surviving spouse or civil partner inherit under intestacy if the deceased is also survived by issue?

(a) Personal chattels absolutely, (b) a tax-free statutory legacy of $£322,000$ (for deaths on or after 26 July 2023) plus interest from death to payment, and (c) one half of the remaining residuary estate absolutely.

What survivorship condition must a spouse or civil partner fulfill to inherit on intestacy?

They must survive the deceased by 28 days; otherwise, they are treated as having predeceased the intestate.

How can a surviving spouse acquire the deceased's interest in the family home if it formed part of the residuary estate?

The spouse living in the property can formally require the personal representatives in writing within 12 months of the grant of representation to appropriate the home toward their entitlement, paying 'equality money' if the home's value exceeds their entitlement.

What contingency must be satisfied before a child's interest under an intestacy statutory trust (s 47 AEA 1925) vests?

The child must reach the age of 18 or enter into an earlier valid marriage or civil partnership.

What is the priority order of inheritance under AEA 1925 when an intestate leaves no surviving spouse or civil partner?

(a) Issue, (b) parents, (c) siblings of whole blood, (d) siblings of half blood, (e) grandparents, (f) aunts/uncles of whole blood, (g) aunts/uncles of half blood, and (h) the Crown/Duchy of Lancaster/Duchy of Cornwall (bona vacantia).

What is the single exception to the rule that adopted children cannot inherit from their natural family on intestacy?

A contingent interest already held in a natural parent's estate immediately before the adoption took place is preserved.

What legal presumption applies on the intestacy of a person whose parents were not married?

It is presumed that the deceased was not survived by their father or any of their father's relatives, unless the contrary is shown or the father is named on the birth certificate.

How does the Human Fertilisation and Embryology Act 2008 treat parenthood for a husband or civil partner when a child is conceived via donor sperm?

Under section 35, the husband is the legal father unless he did not consent; under section 42, the mother's female spouse or civil partner is treated as the 'second female parent' for all legal purposes, including intestacy.