SQE - Wills & Administration of Estates

What determines how a deceased’s assets are distributed?

Whether the deceased left a valid will. If so, the will governs the distribution; if not, the intestacy rules apply.

What is a ‘succession estate’?

The deceased’s assets capable of passing under a will or by intestacy, excluding assets governed by other specific rules.

What happens if a will does not cover the entire estate?

The deceased is considered partially intestate, and the intestacy rules apply to any remaining property not covered by the will.

When is someone considered ‘testate’?

When they have left a valid Will covering the entirety of their succession estate.

What are the main assets that don't pass via the succession estate?

• Donationes mortis causa (DMC): Gifts made in contemplation of death that are conditional upon the donor's death.

• Discretionary pension scheme benefits: Payments from discretionary pension schemes do not form part of the deceased’s estate because the trustees have discretion over the distribution.

• Insurance policies written in trust: Proceeds from life insurance policies written in trust for a third party pass directly to the nominated beneficiaries and do not form part of the succession estate.

• Statutory nominations: Funds held in accounts like Friendly Society or Provident Society accounts (up to £5,000) can be nominated to a beneficiary, bypassing the succession estate.

• Property held as beneficial joint tenants: Property owned as joint tenants passes automatically to the surviving joint tenant(s) through the right of survivorship, not through the succession estate.

• Certain beneficial interests under trusts: For example, life interests in trusts or interests under discretionary trusts may not form part of the succession estate, depending on the trust deed.

What is a donatio mortis causa?

A gift made in contemplation of death that is conditional upon the donor's death. It does not form part of the succession estate.

1. The donor believes they may die imminently of a particular cause

2. The donor makes clear the gift is conditional on them dying

3. The donor parts with the property or something resembling ownership (e.g keys to a house)

What is the difference between joint tenants and tenants in common regarding property ownership?

Upon death, a joint tenant’s share passes automatically to the other joint tenants (survivorship), whereas a tenant in common's share passes into the succession estate.

What are the conditions for the intestacy rules to apply?

Intestacy rules apply when the deceased dies without a valid will (intestate) or when the will does not dispose of all the property (partial intestacy).

Who holds the property on trust in an intestate estate?

The personal representatives hold the property on trust under s.33 AEA 1925 with the power to sell.

Who is entitled to the estate under intestacy if the deceased is survived by a spouse but no issue?

The spouse inherits the entire estate. If they survive at least 28 days.

What happens if the deceased is survived by both a spouse and issue?

The spouse receives personal chattels, a statutory legacy of £322,000, and half the residue. The issue receive the other half of the residue on statutory trusts.

What are statutory trusts?

Statutory trusts provide that entitled beneficiaries must reach 18 to inherit (contingency limb). If a beneficiary predeceases, their issue can inherit under the substitution limb.

What are the spouse’s entitlements if they survive the deceased by 28 days?

Personal chattels, statutory legacy of £322,000, and half of the residue (if any).

What is required for a beneficiary to have a vested interest in an intestate estate?

The beneficiary must be 18 or older at the time of the intestate’s death.

What is the right of appropriation for a spouse under intestacy rules?

The surviving spouse can appropriate the marital home in satisfaction of their entitlement, as long as they elect in writing within 12 months of the grant.

How are personal chattels defined under intestacy rules?

Personal chattels are tangible movable property, excluding money, business property, or investments.

How are illegitimate and adopted children treated under the intestacy rules?

Illegitimate, legitimated, and adopted children are treated equally as issue.

What happens if an entitled beneficiary under statutory trusts dies before the intestate?

Their issue may inherit their share, provided they satisfy the contingency limb (reach age 18).

How is the intestate estate distributed if the deceased is survived by both whole-blood and half-blood siblings?

Whole-blood siblings have priority over half-blood siblings in the statutory order of entitlement.

What is the rule if the intestate is not survived by any relatives?

The estate passes to the Crown as bona vacantia.

What is the statutory order of distribution if the deceased dies intestate and is NOT survived by their spouse or issue?

If the deceased dies intestate and is not survived by a spouse or issue, the statutory order as per s.46 AEA 1925 is:

1. Parents (one or both)

2. Siblings of the whole blood (share both parents with the deceased)

3. Siblings of the half blood (share only one parent with the deceased)

4. Grandparents

5. Uncles and aunts of the whole blood (whole-blood siblings of the deceased’s parents)

6. Uncles and aunts of the half blood (half-blood siblings of the deceased’s parents)

7. The Crown (Bona Vacantia)

What is the statutory order of entitlement (to receive the estate) under an intestacy

"P-S-G-A-H-C"

Parents
Siblings (whole blood then half blood)
Grandparents
Aunts & Uncles (whole blood)
Half-blood Aunts & Uncles
Crown (Bona Vacantia)

What are the requirements for making a valid will in England & Wales?

Testator must be 18 or over (s7 Wills Act 1837)

Must meet the legal requirements:

• testamentary capacity,

• knowledge and approval of the contents,

• and compliance with s9 Wills Act 1837.

What is testamentary capacity according to the Banks v Goodfellow case?

The testator must:

• Understand the nature and effect of making a will.

• Appreciate the extent of their property.

• Recognize any moral claims against their estate.

• Not suffer from insane delusions affecting the will.

How can a disorder of the mind affect testamentary capacity?

A testator suffering from insane delusions that affect their judgment lacks testamentary capacity. However, delusions that don't affect the terms of the will don't invalidate capacity.

When must testamentary capacity be present?

Testamentary capacity must be present at the time of execution of the will, unless the exception in Parker v Felgate applies, where prior capacity can suffice if instructions were previously given.

(Provided they had capacity at the time of giving instructions)

What is fluctuating capacity and how does it affect testamentary capacity?

A testator’s mental capacity may fluctuate, for instance, due to illness or life events (e.g., grief). Testamentary capacity may be present on some days (lucid intervals) but absent on others.

What is the Golden Rule for taking instructions from an elderly or seriously ill testator?

A medical practitioner should assess the testator’s capacity, and a contemporaneous record should be made. This is best practice, but not a legal obligation.

What is the presumption of testamentary capacity?

Capacity is presumed if the will appears rational and has been duly executed. The burden of proof shifts to the challenger to raise doubt, after which the propounder must prove capacity.

How does the Mental Capacity Act 2005 relate to testamentary capacity?

The general test for decision-making capacity under the MCA 2005 ties into the common law test for testamentary capacity in Banks v Goodfellow, but it does not replace or override it.

What is a statutory will?

A statutory will is a will authorized by the court on behalf of a person who lacks testamentary capacity under s.18(1) MCA 2005. The court must be convinced it is in the person’s best interests.

What does a testator need for knowledge and approval of a will?

The testator must:

• Intend to make a testamentary document.

• Know and approve of the contents of the will.

• Understand the choices they have made.

When is knowledge and approval presumed?

It is presumed if the testator:

• Has testamentary capacity.

• The will appears rational and has been duly executed.

In what situations is knowledge and approval not presumed?

The presumption does not apply if:

• The testator is blind or illiterate.

• The will is signed by someone on behalf of the testator.

• There are suspicious circumstances, e.g., will prepared by a key beneficiary.

When might an affidavit of knowledge and approval be required?

It is needed if:

• There is no presumption of knowledge and approval.

• The attestation clause does not address the issue, e.g., in cases involving blindness or inability to read English.

What is the effect of undue influence or duress on a will?

A will, or part of a will, made as a result of undue influence or duress is invalid because it does not reflect the testator's true intention.

What is undue influence in relation to wills?

Undue influence occurs when a testator is coerced into making a will or including certain terms against their judgment and true intention. The testator's decision-making is overborne by pressure they cannot withstand.

Who has the burden of proof for undue influence?

The burden lies with the person alleging undue influence. They must provide evidence that the facts are inconsistent with any other hypothesis.

Is there a presumption of undue influence in relation to wills?

No, there is no presumption of undue influence for testamentary dispositions. Whether it occurred is a question of fact, with the burden on the person alleging undue influence.

What are the basic requirements for a valid will under s.9 Wills Act 1837?

The will must:

1. Be in writing.

2. Be signed by the testator (or someone else in their presence and by their direction).

3. The testator’s signature must be witnessed by two or more witnesses.

4. The witnesses must sign the will in the testator’s presence.

What is required for the testator’s signature under s.9 Wills Act 1837?

The testator must:

• Sign the will themselves, or another person may sign on their behalf in their presence and by their direction.

• The signature must appear to be made with the intention of giving effect to the will.

What are the requirements for witnesses under s.9 Wills Act 1837?

The witnesses must:

• Be present at the same time as the testator when the will is signed or acknowledged.

• Sign the will in the testator’s presence (but not necessarily in each other's presence).

What is an attestation clause in a will?

An attestation clause describes the circumstances under which the will was executed. While not legally required, a properly drafted clause raises a presumption of due execution.

What happens if a will lacks a proper attestation clause?

If there is no or a poorly worded attestation clause, proof of proper execution is required. Usually, this involves an affidavit of due execution sworn by the witnesses.

What does s.15 Wills Act 1837 state about witnesses who are also beneficiaries?

If a beneficiary (or their spouse) acts as a witness, the gift to that beneficiary is void, but the will remains valid.

This rule does not apply to professional executors entitled to remuneration.

Who should not act as a witness to a will?

Witnesses should not be:

• Minors.

• Blind individuals.

• People who are drunk or of unsound mind.

How can the effect of s.15 be avoided if a beneficiary has witnessed the will?

The effect of s.15 can be avoided if:

• There are two other witnesses unaffected by s.15, or

• The will is confirmed by a properly executed codicil.

Why are Burial and Funeral Wishes included in a will, and are they legally binding?

These express the testator's wishes for their body after death. They are not legally binding but are usually followed by personal representatives.

What are qualified appointments for executors?

Appointments that limit the executor's role by time, location, or asset type, ensuring no part of the estate is left without an executor.

What is the maximum number of executors that can apply for a grant of probate?

4. If there are more, their power is reserved.

What is the difference between executors and trustees?

Executors administer the estate and their role ends after distribution, while trustees manage any ongoing trusts created by the will.

Why are express administrative powers included in a will?

To expand or restrict default statutory powers, allowing executors and trustees to effectively administer and manage the estate.

What are STEP provisions in a will?

Standard express administrative provisions produced by the Society of Trust and Estate Practitioners, commonly used in professionally drafted wills.

What is the difference between 'legacy' and 'devise' in will drafting?

'Legacy' refers to a gift of personal property (chattels), while 'devise' refers to a gift of real property (land).

What happens if the testator no longer owns a specific item given in a will?

The gift "adeems" (fails), and the beneficiary receives nothing unless the will includes a substitution clause for an alternative item or equivalent value.

How are personal chattels defined for the purposes of estate administration and will drafting?

s.55(1)(x) of the Administration of Estates Act 1925 defines "personal chattels" as tangible movable property (excluding money, business assets, and investments).

What is a general legacy in will drafting?

A general legacy is a gift of property not distinguished from other similar property, e.g., "a camera" rather than "my camera." If the item isn’t part of the estate at death, the PRs must purchase it.

How can partial intestacy be avoided in the residuary clause?

By avoiding separate parts of the residue, including express substitution clauses, and using an ultimate gift-over clause (e.g., to charity) to ensure all property is accounted for.

What is a demonstrative legacy?

A demonstrative legacy is a gift of a sum of money from a specified source (e.g., a bank account). If the source is insufficient, the remainder is paid from the general estate.

What is the significance of using "my" in a will when describing a gift of property?

The word "my" shows a contrary intention to the general rule in s.24 Wills Act 1837, meaning the item is identified with reference to what the testator owned at the time of executing the will, not at the time of death.

If the gift no longer exists at the date of death, the gift will adeem.

What general rule does s.24 Wills Act 1837 establish regarding property in a will?

Under s.24, a will speaks from the testator's death, meaning the property given is identified based on what the testator owned at the time of death unless the will shows a contrary intention.

How does the use of the word ‘my’ implicate gifts in a Will?

For property, ‘my’ means as at date of signing.

For collections ‘my’ means as at date of death.

For people ‘my’ means at date of signing. (E.g my nurse)

Are gifts in a Will subject to IHT?

The general rule is no individual gift is subject to IHT and IHT would be payable out of the residuary estate

How are costs associated with gifts dealt with?

s.35 AEA 1925

Specific beneficiaries bear the burden of the cost of delivery of the item to them and expenses incurred in ensuring the upkeep / preservation (e.g sale of a property - legal fees, grass cuttings)

Furthermore, if there is a charge, that asset bears liability for payment. E.g a house is inherited subject to the charge unless expressly relieved.

What is a survivorship clause in a will, and why is it important?

A express survivorship clause requires a beneficiary to outlive the testator by a specified period (commonly 28 or 30 days) to inherit. It prevents assets from passing to a beneficiary who dies shortly after the testator, avoiding extra costs and complications.

What is the commorientes rule?

Under s.184 Law of Property Act 1925, if two people die in circumstances where the order of death is uncertain, the eldest is presumed to have died first, affecting who inherits the assets.

What is the effect of a codicil on a will, especially in terms of identifying beneficiaries?

A codicil republishes the will as of the date of the codicil. Beneficiaries are identified with reference to the date of the codicil, not the original will. For example, "my nurse" would refer to the nurse at the time of the codicil.

What is the benefit of using a class gift, such as "to my children," instead of naming individual beneficiaries?

It allows future-born children to be included in the inheritance without needing to update the will.

When does a class gift typically close?

A class closes when at least one member of the class becomes entitled to the gift, often when they reach a specified age or meet a condition or if no conditions, on the date of death.

E.g a gift of “£300 to be shared equally between my grandchildren who reach the age of 21” will close when the first reaches 21. Any grandchildren born after this will not inherit.

What does Section 33 of the Wills Act 1837 provide for? (testators children)

It prevents the lapse of gifts to a testator's children or issue if they die before the testator, passing the gift to their descendants instead.

S33 will apply unless expressly excluded or contrary intention.

What is the cy-pres doctrine in relation to charitable gifts?

It allows a gift to be redirected to a similar charity if the original charity ceases to exist or cannot fulfil the testator's intent.

How can changes or additions to a will be made?

Changes or additions to a will should be done by a codicil or by revocation of the original will and execution of a new will.

What are the criteria for successfully incorporating an unexecuted document into a will?

• The document must exist when the will is executed (or at the time a later codicil is made).

• The will must refer to the document as being in existence at the time of execution.

• The document must be clearly identified in the will.

What happens if an unexecuted document is validly incorporated into a will?

It becomes part of the will, even though it does not comply with s.9 of the Wills Act 1837.

Do letters of wishes form part of the will or the trust created under it?

No, letters of wishes do not form part of the will or the trust created under it.

What are the three options available to a testator who wishes to amend their will?

• New Will

• Codicil

• Manuscript amendments

What is the rule regarding alterations to a will made after its execution according to the Wills Act 1837, s. 21?

Alterations made after the execution of a will are generally invalid unless the alteration is executed in the same manner required for the execution of a will.

What is the presumption about alterations made to a will if the timing of the change is unclear?

There is a rebuttable presumption that any alteration was made after the will's execution, rendering the alteration invalid unless proven otherwise.

What must be done for manuscript alterations to a will to be considered valid if made after execution?

The alterations must be attested by the signatures of the testator and two witnesses near the alteration itself.

What is obliteration?

The text has been crossed out in such a way the original text is illegible.

What is interlineation?

Writing has been inserted between the existing lines of the document (to add something in)

What is the general rule about alterations to Wills?

If they are made after execution they are invalid and unenforceable - the original wording is given effect to.

Unless the alteration is signed and witnessed by two witnesses.

What is the effect of obliteration if the original wording of the will is not apparent?

If the original wording is not apparent due to obliteration, it is presumed that the testator intended to revoke that part of the will, making the obliteration effective.

What does the term 'apparent' mean in the context of manuscript amendments to a will?

'Apparent' means that the original wording of the will can be read or deciphered using natural means (e.g., reading with the naked eye) without the need for technological aids or external evidence.

What exception applies when a blank space in a will has been filled in by manuscript amendment?

There is a presumption that the completion of a blank space occurred before the execution of the will, making the amendment valid.

What manuscript amendments are considered effective and not-effective?

Effective

• Obliteration with intent to revoke - effective (revokes this part of the will)

• Blank spaces - effective (presumption it was completed before execution)

• Subsequently confirmed by codicil

Not effective

• Written alterations - unless signed and attested (2 witnesses)

• Obliteration by third parties or without an intent to revoke (e.g substitution of numbers - provided evidence of the original gift can be found).

What is a codicil in the context of a will?

A codicil is a formal testamentary document that amends an earlier will, rather than replacing it. Both the will and the codicil remain active and are intended to be read together.

What should a testator usually be advised to do if they wish to make significant or multiple changes to their will?

A testator should usually be advised to make a new will rather than creating a codicil to avoid the risk of inconsistency between documents.

How does executing a codicil affect the original will it refers to?

Executing a codicil acts to "republish" the original will, meaning the will is treated as if it had been executed on the date of the codicil, which can impact the interpretation of its clauses.

What is the effect of a codicil on an unattested manuscript amendment in a will?

A codicil can confirm unattested manuscript amendments made before the codicil's execution if it expressly refers to them, making the amendments valid.

What happens if a codicil is later revoked but had previously revoked part of the original will?

If a codicil revokes part of a will and the codicil itself is revoked, the terms of the will that were revoked by the codicil do not automatically become reinstated.

What is the consequence of a beneficiary (or their spouse) witnessing a will under s15 Wills Act 1837?

Under s15 Wills Act 1837, a beneficiary who witnesses a will is denied their inheritance, but a later codicil witnessed by different people can restore the gift to that beneficiary.

an a codicil revive a previously revoked will?

Yes, a codicil can revive a previously revoked will if it is the testator's intention, according to s22 Wills Act 1837, unless the revocation was by way of destruction.

What is required for a will to be revoked by destruction under s20 Wills Act 1837?

The will must be destroyed (e.g., burned, torn) by the testator with the intention to revoke it. Both the physical act and the intention are necessary for revocation.

What happens if a testator lacks the capacity or intention when destroying their will?

If the testator lacks capacity or intention, the destruction is not effective, and the will remains valid. Affidavit evidence would be required to admit a copy of the will to probate.

What is the presumption if a testator's will is missing or damaged after their death?

The presumption is that the testator destroyed or damaged the will with the intention to revoke it, unless evidence is presented to suggest otherwise.

What is the difference between an express and implied revocation by a will?

Express revocation explicitly states that all previous wills are revoked. Implied revocation occurs when a later will does not include a revocation clause but is inconsistent with the earlier will, thus revoking it to the extent of the inconsistency.

Can a codicil revoke a will or part of it?

Yes, a codicil can revoke a will or part of it, usually by express wording. If no express words are present, it revokes the will to the extent of its inconsistency.

What is the difference between mutual wills and mirror wills?

Mutual wills involve a binding agreement not to change the terms of the will without the consent of the other party, potentially leading to a constructive trust. Mirror wills are similar wills made by a couple but without any binding agreement or restrictions on future changes.

What is a Potentially Exempt Transfer (PET)?

A PET is a lifetime gift to another individual that is exempt unless the transferor dies within 7 years, in which case it becomes chargeable to IHT.