WAE - Wills: drafting

What is the structure of the standard precedent for wills?

1. intro clauses

2. appointment of executors and guardians

3. dispositive clauses

4. administrative provisions

5. execution/attestation

What is a commencement clause?

- identifies testator and sometimes occupation

- can include date here or at the end of the will

e.g., I TOM JAMES JONES sometimes known as JIM JONES of Altrincham a solicitor declare this to be my last will and testament

What is a revocation clause?

- revokes prior wills and codicils

- not needed for a will to be valid, but avoids confusion

- if T has more than one valid will, the later will revokes the former by implication

e.g., I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will

What is the effect of burial & funeral wishes clauses?

- not legally binding on personal representatives but will usually be followed

- not mandatory

- e.g., I WISH my body to be given to science

What is an executor?

- a personal representative appointed by will

- will collect T's assets, administer the estate and pay T's debts and costs

- T should obtain consent from executor in advance

What is an administrator?

personal representative appointed through the Non-Contentious Probate Rules, when there is no one named as executor in the will

Are revocation, date and attestation clauses mandatory?

No, but useful for avoiding confusion and usually included

Who may act as an executor?

- Any adult with mental capacity

- a bankrupt PR can act but cannot perform all PR functions, so best avoided

How many executors is the minimum/maximum?

- at least 1, best to have 2

- maximum of 4 can apply for grant of representation

- if more than 4 are named in the will, if a vacancy arises, places are reserved for those who did not apply initially

When will appointment of spouse/civil partner as executor become ineffective?

if T later divorces them/dissolves civil partnership

In which 3 ways could an executor be qualified?

qualified by time - to take effect only for a fixed period or if they survive the testator by a certain period

qualified by location of the assets - e.g. only UK assets

qualified by type of assets - e.g. only business assets

What must T ensure when appointing a qualified executor?

Must ensure that all of the other assets will still be administered

When will appointment of an executor be void?

- if it is not clear that someone has been appointed to that role

- if there is ambiguity about who is supposed to fulfil the role.

How is a partnership appointed as an executor?

- does not have a separate legal identity

- all of the partners are appointed as individuals

- the number who can actually act will be limited by T stating that only one or two should act, can give general preference for who should act

e.g., I APPOINT the partners (which term includes directors or members) at the time of my death in the firm of LAW FIM or the firm which at that date has succeeded to and carries on its practice including a firm which has been incorporated or formed an LLP .................to be the executors and trustees of this my will and express the wish that no more than two of them shall prove my will and act initially in its trusts but that [ ] if then a partner should be one of them

How is an LLP appointed as an executor?

- LLP has separate legal status and can be appointed as an executor

e.g., I APPOINT my spouse and LAW FIRM LLP of London jointly to be the executors and trustees of this my will (hereinafter called my Trustees)

How is a trust corporation appointed as an executor?

- trust corporation = a corporation with authority to carry out trustee and PR roles.

- will have separate legal personality from the company or LLP that owns/runs it

e.g., I APPOINT [NAME OF TRUST CORPORATION] to be the only executor and trustee of this my will (hereinafter called my Trustee)

What is an express charging power?

- used by professional trustees (e.g., partners in a law firm or trust corporation)

- allows them to charge for their time, which they are allowed to do under s.29 Trustee Act 2000

- entitled to charge, and be paid, reasonable remuneration

- does not breach fiduciary duty

What are the rule around appointing guardians for one's children?

- appointment of a guardian by one parent would not normally take effect until after the death of the surviving parent.

- T must get consent from guardian for this, and G does not have to accept

- may want to make financial provision and/or appoint more than one

e.g., I APPOINT X and Y jointly to be the guardians of any of my children who have not attained the age of 18 at the death of the survivor of myself and my civil partner Z

What is the difference between an executor and a trustee?

Executor

- primary duty is to administer the estate.

- task is complete once they have distributed assets

Trustee

- responsible for any trusts that continue following the estate administration

- the role will continues for as long as the trust is in existence.

When may a trust arise in a will?

- an express trust is created

- executors cannot distribute all of the estate and assets must be held on trust (e.g., B is a minor)

can lay executors charge for their time?

no

can be reimbursed for expenses however

What are administrative powers in a will?

Powers giving trustee(s) and executor(s) powers to administer estate and trusts

- these will override default powers when there is any discrepancy

Who can c

What administrative powers will apply if a will contains no express administrative powers?

only statutory and common law powers will apply

- these will be the same rules as when someone dies intestate

What is the Society of Trusts and Estates Practitioners (STEP) and what do they do?

- a professional body promoting best practice for those advising on wills, trust and tax matters.

- holds a list of standard provisions for wills

- details of these are outside scope of this module :)

Where may a date be included in a will?

- in commencement clause

- in attestation clause

What is an attestation clause?

- describes the circumstances in which the will was signed, confirms the requirements for due execution are satisfied

- date may be included here instead of at the start of the will, but not in both places

e.g., Date: 23/09/25 Signed by T in our joint presence and then by us in T's presence

What does 'legacy' usually refer to?

gift of chattels or personalty (personal property)

what does 'devise' usually refer to?

gifts of real property (land)

What is a specific gift?

- specific item owned by T at time of death

- subject matter must be certain, or clause will be void for uncertainty

e.g., I GIVE to [ ] my painting of Epsom race course framed in red and gold absolutely

What happens if an item in a will is no longer owned by T when they die?

- B will receive nothing unless a substitution clause has been included

How can a specific gift be substituted?

Only possible if substitution is expressly stated in the will - if not, the specific gift will fail

- T may replace items over time (e.g., car)

- if it is not possible to give effect to original gift (e.g., they were meant to have a specific car that has since been scrapped), can give effect to alternative subsititute gift

- usually cash equivalent or alternative item

rules around gift of collections

- must be distinguishable (e.g., a gift of all of my best clothes cannot be distinguished, a gift of my Meissen china can)

- may be to one individual or to several, to divide between them

- if to be divided, should include details of how agreement should be reached, a time frame for deciding on divisions and how any failure to agree should be resolved

How are chattels dealt with in a will?

- specific gifts appear before gifts of chattels in a will, as the general gift of chattels is only included in a will to cover items that have not already been given away

e.g., I give to X absolutely such of my personal chattels as defined by section 55(1)(x) of the Administration of Estates Act 1925 as are not hereby or any codicil hereto otherwise specifically disposed of.

- pay attention to whether the object is legally classed as a chattel or not

What are chattels? (Administration of Estates Act 1925)

Which things are not chattels?

tangible movable property

inc. cars, modes of transport and pets

does not include:

- money

- securities for money

- assets used at the intestate's death solely or mainly for business purposes

- assets held at the intestate's death solely as an investment

How can non-chattels be passed as chattels?

By stating so in the will

e.g., I give to X absolutely all my personal chattels as defined by section 55(1)(x) of the Administration of Estates Act 1925 and also any motor car belonging to me even though used wholly or partly for business purposes

Is property held as joint tenants included in the succession estate?

no - will pass automatically to surviving co-owner

- no provision required in the will to reflect this

Is property held as tenants in common included in the succession estate?

yes - can state in the will who their share should go to.

What is the significance of wills signed pre-1st October 2014 referring to s.55(1) of the Administration of Estates Act 1925?

- will use an old definition of chattels (not covered in this module)

- date of death after 2014 not relevant

What is a general legacy?

- a gift of property which is not distinguished form property of a similar type ('a camera' rather than 'my camera')

- PRs can buy the property if this is not already part of the estate

- often used for gifts of cash

e.g., I GIVE to X a Leica camera absolutely

What is a demonstrative legacy?

- A type of general legacy which identifies the source from which the gift is to be made

- will not fail if there are insufficient funds in the account - B can instead receive what is left and have the rest paid back from another source

e.g., I GIVE to X the sum of £500 to be paid from my Nationwide Savings Account absolutely

What is a pecuniary gift?

- gift of money

- can be specific (my £1000 cash in the safe) or general (£1000)

What kind of clause is this?

I GIVE all the assets I can dispose of by will subject to the payment of my debts and funeral and testamentary expenses and all legacies given hereby or by any codicil hereto ('my Residuary Estate') unto.....

gift of residue aka residuary legacy

When should a trust be imposed for a residuary legacy?

- when B is given a life interest in the residue

- residue is given to more than one person

- there are contingent or minor interests in the residue

How can you avoid failure of residual gifts?

- create substitution clauses in case the original beneficiary dies

- use an ultimate gift over clause (aka disaster clause) in case all other gifts fail = often a gift to charity

What is the date the will speaks from when identifying property in the will? (s.24 Wills Act)

- speaks from the date of T's death (unless a contrary intention is shown) in respect of identify subject matter

How can T show contrary intention so that the date from which the will speaks is NOT date of death?

- will speaks from the date of T's death (unless a contrary intention is shown)

- can show contrary intention by using the words 'my', 'now' or 'at present' - these will make the date of execution the date from when the will speaks

e.g., I GIVE my car absolutely = the car I own right now when executing the will - if the car has been sold, B will receive nothing

Are shares a collection?

Yes - and therefore a gift of 'my shares' will refer to shares at date of death

- instead of shares at date of execution, which would be the usual rule

What is the date from which the will speaks, for collections?

- use of the word 'my' will not change the date for the purposes of identity of subject matter - will still be date of death

- helpful to specify this in a will anyway, just in case

e.g., 'my stamp collection', 'my shares' - assumed to be size of collection at time of death

When does the will speak from when identifying people in the will?

What is there are later codicils?

- speaks from the date of execution (not death) unless a contrary intention is shown

- if a codicil is added, the will is effectively republished, and so a gift to 'my nurse' would become T's nurse at the time of the codicil

Who pays inheritance tax on gifts?

- unless stated otherwise, is assumed that an individual gift is made free of inheritance tax

- IHT would be paid out of the residue as an expense

Who pays expenses/cost of transfer for gifts?

unless stated otherwise, beneficiaries each bear the burden of

- cost of delivery of goods to them

- expense of maintaining the item since the date of death

T can request these to be paid out of the residuary however

Who pays for secured debts/charges (e.g., a mortgage) over succession estate assets?

- unless the will shows a contrary intention, the asset charged bears liability for payment of charges (s.35 Administration fo Estates Act)

- therefore, B inherits subject to the charge

- T can expressly relieve the property of the charge, and have this paid out of the estate

- but must do this expressly, rather than generally stating that debts should be paid from the residue

How can the courts become involved in interpreting wills?

- can intervene where there is ambiguity

- overriding principle is to give effect to T's intention

When can extrinsic evidence be used by the courts to interpret a will? (evidence from outside the will itself) (s. 21 Administration of Justice Act)

- if the will or part of the will is meaningless

- if the language used in any part of it is ambiguous on the face of it

- if the will is ambiguous in light of the surrounding circumstances

will not contraduct the language used by T, but will aid interpretation

How long must B survive T in order to benefit?

- must survive longer than T, that is all

- no 28-day rule like for intestacy

What happens if B and T die in the same event and the order of deaths is uncertain?

- for will/intestacy purposes

- for tax purposes

- Commorientes rule applies: presumption that eldest died first (LPA 1925)

- s.4 IHT treats the deaths as simultaneous - for tax purposes, is as if neither inherits from the other - property that passes from T to B is not taxed again when going from B to their beneficiary

What is a survivorship clause?

A clause which makes a gift conditional upon the survival of the beneficiaries for a specific period of time (usually no more than 28 days)

What is a class gift?

gift to a group of beneficiaries who meet a general description (e.g., my children)

When does a class close under class closing rules?

When a group of beneficiaries are identified, and the first member of the class becomes entitled to possession

e.g., "I give £300 to be shared equally between my grandchildren who reach the age of 21"

- the class of grandchildren will close when the oldest reaches 21

- if another grandchild is born when the oldest is 22, will not be included in the class to inherit in future

- if there is already a grandchild over 21, the class will close as soon as T dies

When do class closing rules not apply?

- if a fixed sum is given to each person separately (£200 to each child)

- in the above case, only children alive when T dies are entitled

What is a vested interest?

A gift vests if it is given outright and absolutely and there are no conditions which must be met.

- age is irrelevant

e.g., "I give £1,000 absolutely to each of my children alive at the date of my death"

- a 16 year old would have a vested interest, gift will be held on trust for them

- if they die before age of 18, interest will pass into their own estate

What is a contingent interest?

an interest in property which is conditional upon the occurrence of an uncertain future event

What happens when a gift lapses?

What happens when a residual gift lapses?

gift lapses = asset ends up in the residuary

residual gift lapses = full/partial intestacy

How can you avoid a gift lapsing? (2 ways)

- include a substitution clause in the will so it passes to someone else

- s.33 Wills Act may apply to prevent the lapse (only applies to T's descendants)

What is the rule in s.33 Wills Act that avoids lapses of gifts for children?

- if a will includes a bequest to a child/descendant, that child dies before T, leaving issue, and the issue is alive at the time of T's death...

- unless contrary intention is shown in the will, the bequest will take effect as a bequest to B's issue.

- only applies to T's descendants, would not apply to substitute niece for aunt e.g.,

- if original gift was contingent, new gift will still be contingent

Will gifts to minors under s.33 be contingent interests?

- s.33 does not make a gift contingent unless it was contingent under the original gift

- even if passing to a minor! (unusual quirk)

- It will vest immediately

How can the application of s.33 WA be excluded?

- expressly state this in the will

- expressly insert any desired substitutions

How do you know if a joint gift is given to B1 and B2 as joint tenants?

joint tenants = assume this is how the gift is given, in the absence of any words indicating division

e.g., "I give £800 to A and B" is a gift to A and B as joint tenants. If A dies before T, then B gets the whole gift.

How do you know if a joint gift is given to B1 and B2 as tenants in common?

- if the language indicates division (equally, to be shared, to be divided)

e.g., "I give £800 to be divided equally between A and B" as opposed to "I give "£800 to A and B".

- if A dies before B, A's share will lapse and become part of the residue, unless there is a substitution clause

What details are required when leaving a gift to an organisation?

- must give full name and address (and registered charity number)

- consider if organisation has charity status (tax implication)

- include express provision in case organisation changes its name

- specify the individual who can give valid receipt (often the treasurer)

What is the cy-pres doctrine, when the assets cannot be given to the intended charity?

gift is to be given to a different charity with similar purposes

What value will assets be considered to have?

the market value of the asset on the date that T died.

Who is considered an issue for the purposes of a will?

- illegitimate, legitimated, and adopted children

- Stepchildren are not included unless explicitly stated

How do class closing rules work?

- Generally, the class closes when any member becomes entitled to possession

- But express wording in the will can provide more clarity on when the class closes

What's the difference between vested and contingent interests?

- Vested interest: Given outright with no conditions

- will pass to the beneficiary's estate if they die before receiving it

- Contingent interest: Beneficiary must satisfy a condition to inherit

- these interests lapse if the beneficiary dies before meeting the condition

How does the lapse of pecuniary and residuary gifts work in wills?

- Gifts lapse if the beneficiary dies before the testator

- Lapsed pecuniary legacies fall into the residuary estate

- Lapsed residuary gifts may result in partial or full intestacy

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

1. Document must exist when the will is executed (or at the time a later codicil is made)

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

3. The document must be clearly identified in the will

What are the implications of incorporating an unexecuted document into a will?

- It becomes part of the will even if it doesn't comply with s.9 Wills Act 1837

What are STEP provisions and how are they incorporated into a will?

- STEP (Society of Trust & Estate Practitioners) produces nationally recognized administrative powers

- commonly incorporated by reference to the STEP provisions as an alternative to drafting clauses

What are letters of wishes in relation to wills?

- documents drafted by the testator and stored with the will

- not legally binding, and do not form part of the will or trust created under it

- no intention for these documents to be incorporated into the will

Re key

Must get a note of capacity of the client from medical practitioner, and an encouragement to be a witness to the will (practical aspect) (typically GP

Brown v Skirrow

leading case on physical presence - 'line of sight' test (Turning around is not an issue, but if there was a door between the person, then there is an issue)