Wills and Administration of Estates: Validity and Property Distribution

Flashcards covering vocabulary and legal principles related to the validity of wills, property distribution, and the SQE1 syllabus.

Beneficial joint tenants

A form of property ownership where, on the death of one owner, their interest passes by survivorship to the surviving joint tenant(s) independently of the terms of any will.

Tenants in common

A form of land ownership where the share of a deceased owner passes under their will or the intestacy rules, rather than by survivorship.

Administration of Estates Act 1925

The statute containing the intestacy rules which govern assets that do not pass independently or under a valid will.

Testator (or Testatrix)

A person who makes a will.

Executor (or Executrix)

A personal representative appointed by the testator to collect assets, pay debts and taxes, and distribute the remaining estate according to the will.

Grant of probate

A document issued by His Majesty’s Courts and Tribunals Service Probate (HMCTS) which confirms a will is valid and that the executor has authority to act.

Legacy

A term for gifts of personalty (personal property) in a will, though often used to cover both realty and personalty.

Devise

A gift of realty (real property) in a will.

Specific gift

A gift of a specific item or items owned by the testator which is distinguished in the will from the rest of the testator's assets.

General gift

A gift of an item or items corresponding to a description; if the testator does not own them at death, the executors must purchase them using estate funds.

Demonstrative gift

A gift that is general in nature but is directed to be paid from a specific fund; if the fund is insufficient, it is paid from the rest of the estate as a general legacy.

Pecuniary gift

A gift of money.

Residuary gift

Known as the residue, this comprises all money and property left after debts, expenses, and all other gifts in the will have been paid.

Banks v Goodfellow (1870)

The case establishing the test for testamentary capacity, requiring soundness of mind, memory, and understanding regarding the act of making a will, the extent of property, and moral claims.

Parker v Felgate (1883)

An exception allowing a will to be valid if the testator had capacity when giving instructions to a solicitor, even if capacity was lost by the time the will was executed.

The 'golden rule'

A practice suggested in Kenward v Adams where a solicitor, doubting a testator's mental state, obtains a medical report confirming capacity and asks the medical practitioner to witness the will.

Knowledge and approval

The requirement that a testator must intend to make a will and must know and approve the specific contents of the document at the time of execution.

Undue influence

In the context of wills, this means coercion or duress where the testator's freedom of choice is overcome by intolerable pressure.

Section 9 Wills Act 1837

The statutory provision setting out formal requirements: the will must be in writing, signed by the testator (or another at their direction), and witnessed by two or more people present at the same time.

Attestation clause

A clause in a will which recites that the s 9 Wills Act 1837 formalities were observed, raising a presumption of due execution.

Privileged wills

Wills made under s 11 Wills Act 1837 by soldiers on actual military service or mariners at sea, which are valid in any form, including oral statements.

Suspicious circumstances

Situations, such as a beneficiary drafting the will, that prevent the presumption of knowledge and approval and shift the burden to the executor to prove the testator knew the contents.