Wills, administration of estates, trusts
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What is a will?
A declaration or series of declarations by a person stating what should happen following their deal, mainly with regard to their property.
Who is the ‘testator’ of a will?
The person who makes the will.
What are the main differences between a will vs following the rules of intestacy?
A testator of a will can decide who should benefit from their estate, and in what proportions; rather than being distributed in accordance with the RoI.
A testator of a will can choose their personal representatives (‘executors’); rather than them being determined by the Non-Contentious Probate Rules 1987.
The testator of a will can appoint ‘testamentary guardians’ to look after any of their children under 18 at the date of the testator’s death.
The testator of a will can include tax-saving provisions in the will, particularly with regard to potential inheritance tax charges.
It is possible for the testator of a will to extend the statutory powers of the executors (and the trustees of any continuing trust) to remove certain inconvenient rules of law, thereby giving executors and trustees greater freedom in administering the estate or trust.
The testator of a will can include directions as to their funeral and regarding the disposal of their body.
What is the typical order of a will (10 sections)?
Heading/opening words’;
a ‘revocation’ clause;
directions as to the funeral/disposal of body;
appointment of executors (and trustees if there is a trust created by the will);
appointment of testamentary guardians;
‘non-residuary’ gifts, including:
a. gifts of sums of money (pecuniary legacies);
b. gifts of chattels and other personal property (bequests); and
c. gifts of land (devises);
provisions relating to the rest of the estate (residuary gifts);
extensions of the trustees’ powers;
declarations excluding/modifying certain inconvenient rules of law; and
the attestation clause - followed by signatures of the testator and witnesses.
What is the purpose of a revocation clause?
To revoke/cancel any earlier wills of the testator.
What are the three requirements of a valid will?
The testator should have testamentary capacity;
the testator must have the intention to make the will; and
the will must have been executed in accordance with the relevant statutory formalities.
What is testamentary capaity?
The requisite mental state/capacity at the date the will is made.
The testator must be aged 18 or over at the date the will is made - true or false?
True (s7 Wills Act 1837), with the exception of privileged wills (s11 Wills Act 1837).
What is a privileged will? What are the conditions for a person to make a privileged will?
Wills which do not have to comply with the usual formalities set out in s9 Wills Act 1837.
A person:
a) under the age of 18 years; and either
b) in the armed forces whilst on active service; or
c) a sailor at sea,
may make a privileged will.
Do testators of privileged wills need to meet the common law test for testamentary capacity?
Yes - just like testators of standard wills, the testator must possess the requisite mental state/capacity at the date the will is made.
What are the four requirements for testamentary capacity under the common law test under Banks v Goodfellow (1870)?
The testator must understand:
the nature of the will and it’s effects (they must understand that they’re making a will and that the effect of it is to dispose of their property amongst their chosen beneficiaries);
the extent of the property that they are disposing of by the will (they should have a reasonable understanding of their own wealth, although this doesn’t have to be exact); and
the claims to which they ought to give effect (they must understand who would normally expect to benefit from their will/have a moral claim on their estate (e.g. spouses, children), even if they aren’t leaving anything to them in the will).
The testator also should not suffer from any insane delusions which cause them to make provisions in the will which they would not have made if they had been of sound mind - for the delusions to affect the testator’s testamentary capacity, they must have had an effect on what is written in the will.
Can a person have significant mental health or mental capacity issues and still be able to make a valid will?
Yes - provided they have testamentary capacity, it doesn’t matter than they lack the capacity to do other things.
What rule is laid down as an alternative to having the necessary testamentary capacity at the date of executing the will, as set out in Parker v Felgate (1883)?
For a will to be valid, it is sufficient to show that:
the requisite capacity existed at the date of giving instructions for the preparation of the will;
the will was prepared in accordance with those instructions; and
at the time of execution, the testator understood that they were signing a will for which instructions had previously been given (it is not necessary for them a this time to be able to remember those instructions or understand the will).
What prevails in determining whether a testator had testamentary capacity: the common law test in Banks vs Goodfellow or the Mental Capacity Act 2005?
Banks vs Goodfellow - as confirmed in Waker v Badmin (2014).
Who does the burden of proving that the testator had testamentary capacity lie with?
The person seeking to prove the will, to have it accepted by the court as valid.
If the will appears to be rational and the testator has no history of mental capacity issues, the burden of proof will pass to the person who is seeking to prove that the testator lacked testamentary capacity - they will have to adduce evidence to the court to prove this, on the balance of probabilities.
What are the two rebuttable presumptions which usually help a person who is seeking to prove a will?
Capacity is assumed where the will appears to be rational; and
mental states are presumed to continue
What is the ‘golden rule’ for solicitors when instructed by a testator where capacity may be in doubt, per Kenward v Adams (1975)?
In the case of an aged testator who has suffered serious illness, the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of
What is a statutory will?
A will created by the Court of Protection (under s16 Mental Capacity Act 2005) on behalf of a person who lacks the necessary mental capacity to make a valid will for themselves.
What are the two aspects of intention to make a will?
The testator must have had a general intention to make a will; and
the testator must have the specific intention to make the particular will, and the particular provisions contained in that will.
What is ‘probate’?
‘To prove’ - an executor will apply for a grant of probate, and is said to be ‘proving’ the will.
Where does the burden of proving intention to create a will lie?
The burden of proof lies on the person seeking to obtain probate - the person who is claiming the will is valid.
There is a rebuttable presumption that a testator with the necessary mental capacity also executed the will with the requisite knowledge and approval of its contents.
Those who seek to challenge the will would have to prove that the testator made the will as a result of force, fear, fraud or undue influence, or that the necessary knowledge and approval were lacking because of a mistake.
In what two situations is there no presumption of knowledge and approval?
Where the testator is blind or illiterate, or someone has signed the will on the testator’s behalf - a suitable draft ‘attestation clause’ will assist in supplying the necessary evidence of knowledge and approval in such situations
Where there are suspicious circumstances, particularly where the will substantially benefits the person who prepared it - in such cases, evidence will be required of the testator’s knowledge and approval of the contents of the will or it will fail
Does there need to be evidence that the testator read their will?
No - this can be inferred from the surrounding circumstances and the court may consider that it is sufficient that the testator had the opportunity to read the will (per Fuller v Strum (2001)).
What is the standard of proof when considering intention?
The balance of probabilities (the civil standard).
What is the difference between presuming/proving undue influence between lifetime gifts vs gifts in wills?
There is a presumption of undue influence for lifetime gifts where the donee is in a position of influence over the donor.
With gifts in wills, undue influence must always be proven.
What is rectification?
Involves the court in ordering the amendment of a will to correct an error in the testator’s will.
Applications for rectification are made to the court after the testator’s death, when the error in the will is discovered.
Under which circumstances may a court order a will to be rectified under s20 Administration of Justice Act 1982?
If the will fails to carry out the testator’s intentions due to:
a clerical error; or
a failure by the person preparing the will to understand the testator’s instructions.
What timeframe should an application for rectification be made within?
Within 6 months of the date of the main grant of representation to the testator’s estate, although the court may give permission for a later application.
Personal representatives will be protected if they distribute after the initial 6 month period, and will not be personally liable to anyone who would become entitled as a result of an out-of-time rectification application - this does not preclude such persons being able to recover money and property from the beneficiaries who have already received distributions from the estate.
What is there statutory authority to do where part of a will is meaningless or ambiguous?
To enable the use of extrinsic evidence, including extrinsic evidence of a testator’s intention, to assist in the interpretation of the will (s21 Administration of Justice Act 1982).
Can a testator leave gifts to their solicitors in their will?
A solicitor is not likely to be acting honestly, with integrity or in the best interests of their client if they are taking part of the client’s estate after the client’s death, by allowing the client to leave gifts.
Goes against multiple SRA principles (namely 2, 4 5 and 7).
What are the formalities required for a valid will under s9 Wills Act 1837?
No will shall be valid unless:
it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
it appears that the testator intended by his signature to give effect to the will; and
the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
each witness either (a) attests and signs the will or (b) acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
Do the formalities under s9 Wills Act 1837 apply to privileged wills?
No - these can be made informally, even orally.
Is an attestation clause a requirement for a valid will?
No - although an appropriate attestation clause makes the task of proving the formal validity of the will more straightforward as it is presumed that the will has been executed in accordance with s9 WA 1837.
What happens if there is no attestation clause in a will?
Compliance with the requirements of s9 Wills Act 1837 will have to be proved.
What four things should be included in an attestation clause where the testator is blind or illiterate, or someone else signed on the testator’s behalf?
the will was read over to the testator in the presence of the witnesses
the testator understood and approved the will
the testator then signed the will, or it was signed by another in the testator’s presence and at their direction
the witnesses attested the will as before
Are there any requirements as to how a will should be written?
No - it could be typed or handwritten, written on any material or in any language (including code, provided there is evidence enabling it to be deciphered).
Are there any requirements as to the signature the testator uses to execute the will?
No - the testator’s signature is ideal, but any mark made by the testator and intended to be a signature will suffice.
Is it necessary for signatures to appear at the end of the will?
No - the will can be signed wherever, provided the signing and subsequently written dispositions all form part of one transaction.
How many witnesses must be present when the testator signs the will?
Two, present at the same time - they must be able to see the testator writing the signature, but they do not need to see the signature or the contents of the will itself (or even know the testator is signing a will).
Alternatively, the testator may sign the will and then acknowledge that signature (by words or conduct) in the presence of two or more witness, who must be present at the same time and be able to see the signature.
Can a beneficiary act as witness to a will?
Under s15 Wills Act 1837, a beneficiary will normally lose a gift under a will where that beneficiary, or their spouse, has witnessed the will. This does not affect the formal validity of the will (per In the Goods of Chalcraft (1948)).
What is attestation?
The validation of a testator’s signature.
Do witnesses need to sign or acknowledge the will in each other’s presence?
No - only the presence of the testator (bodily and mentally) is required when the signature/acknowledgement is made.
How may a solicitor be liable, and to whom, if the client incorrectly executed the will due to a solicitor’s omission or incorrect instructions?
Liable in negligence to the disappointed beneficiaries (those who would have benefited from the will if it had been valid).
What should a solicitor do if they are not present when the will is signed?
Ask to see the original will once signed or seek proof that it has been executed properly (per Ross v Caunters (1980)).
What is the doctrine of ‘incorporation by reference’?
A document that is already in existence at the time the will is executed may become part of the will, even if that document has not been executed in accordance with s9 Wills Act 1837.
Can terms subsequently be added to a will by documents that have not been executed in accordance with s9 Wills Act 1837?
No.
What are the three conditions that must be met for an unexecuted document to be incorporated into a will by reference?
The document must be clearly identified in the will.
The document must already exist at the date of the will (the onus of proving this lies with the person seeking incorporation of the document).
The document must be referred to in the will as already in existence at the time of execution.
Who does the onus of proving that an unexecuted document (being incorporated into a will by reference) already exists at the date of the will lie with?
The person seeking incorporation of the document.
Can a document be witnessed over video conference?
No - the requirements were relaxed through lockdown but this was not extended past 31 January 2024.
What is a trust corporation?
A company set up to provide estate and trust services, usually to be their executor and possibly a trustee.
What is involved in ‘administering’ an estate?
Collecting in and securing testator’s assets
Paying any debts of the testator
Distributing the testator’s estate in accordance with the wishes expressed by the testator in the will
Who is responsible for administering the testator’s estate?
The testator’s personal representatives (the ‘executors’).
If a testator does not choose personal representatives, how are these appointed?
The Non-Contentious Probate Rules 1987 provide an order of entitlement as to who may be appointed as a personal representative.
Can the same person be appointed as an executor and a trustee?
Yes
What is the role of an executor?
To administer the estate and distribute part/all of the estate to the ongoing trust.
What is the role of a trustee?
To receive the distribution from the estate and to administer the trust on behalf of the beneficiaries of the trust.
What are the four main types of executors and trustees?
Non-professional executors (lay executors) (e.g. family and friends)
Professional executors (e.g. solicitors, accountants)
A trust corporation (e.g. a subsidiary company of a high street bank)
The Public Trustee
What is the Public Trustee?
A public official who can be appointed as an executor of an estate and who provides other trust services to the public - usually a last resort option for an executor/trustee.
What is the difference between non-professional (lay) and professional executors?
Non-professional executors: typically family or friends or acquaintances, do not undertake the role of executor as part of their job and do not charge a fee for the role.
Professional executors: solicitors, accountants etc. - do undertake the work as part of their job and charge a fee.
What are the benefits of appointing non-professional (lay) executors?
Executors know the deceased and potentially the beneficiaries
May also be a beneficiary - will have a personal interest in ensuring the estate is administered quickly
Low cost - executor will not charge for their work
What are the potential disadvantages of non-professional executors?
May ‘cut corners’ in the hope of an earlier distribution, which could cause issues
Potential for conflicts of interest/tension between executors/beneficiaries (e.g. around how assets should be delegated/sold)
May not have the necessary knowledge or experience to administrate the estate efficiently - may have to instruct a professional to undertake the administration
May die or lose the necessary mental capacity before the testator/before the administration of the estate is completed, or decide they don’t want to act
What are the advantages of appointing a professional executor?
Should be more experienced and efficient at administrating estates
Unlikely to cut corners and should comply with the law and terms of the will
Will take out PI insurance - if they make a mistake and cause a consequential loss to the estate, the beneficiaries can recover the lost money
What are the potential disadvantages of professional executors?
Will charge for the administration of the estate
If a named professional is appointed, they may die or lose capacity before the testator dies/the administration of the estate is complete
What are the advantages of appointing a trust corporation as executor?
Similar to that of professional executors - bring expertise to the task
More continuity than individuals who are appointed (the appointment will not fail as a result of an individual dying)
What are the potential disadvantages of a trust corporation?
Cost - can be more expensive than professional executors due to charging structures
What are the main three roles of the Public Trustee to act as?
Executor and administrator of the estates of the deceased
Trustee of trusts in the interests of vulnerable individuals or disabled people
Where there are differences between executors, trustees or beneficiaries
Can the court intervene where they consider an executor to be unsuitable?
Yes - the court has discretion to pass over an executor who is considered unsuitable and to appoint someone in their place (s116 Senior Courts Act 1981).
Are there any specific requirements for someone to be an executor?
No - there is no minimum age for an executor or rules preventing someone lacking mental capacity/bankrupt/a convicted criminal from being an executor.
Can an executor renounce their executorship?
Yes - they can decide not to act as an executor, but they may only do so if they have not already taken active steps (intermeddled) in administering the estate.
What happens when power is reserved to an executor?
If there is more than one executor, and one does not wish to apply for a grant of probate, the other executor(s) can apply for the grant and power is reserved to the executor who doesn’t apply - they can be brought in at a later stage to help with the administration.
Who is the executor if there is no valid will?
There will be no executor - the person will die intestate.
Who acts as personal representative of the deceased where they die intestate?
HM Courts and Tribunals Service will appoint a person - the ‘administrator’, who will distribute the estate according to the intestacy rules.
What does Rule 22 of the Non-Contentious Probate Rules 1987 determine?
Who is entitled to apply to be appointed as administrator - this closely follows the entitlement of persons to benefit to the deceased’s estate under the intestacy rules.
What happens if a testator appoints a spouse/civil partner as executor, but they have since divorced/had the civil partnership dissolved?
The appointment of the spouse/civil partner as executor will fail - they are treated as if they had predeceased the testator.
Who acts as personal representative where there is a valid will but no executor? How is the estate distributed under these circumstances?
Somebody will apply to HMCTS to be appointed as an ‘administrator with the will’ - the administration appointed will administer the estate and distribute it in accordance with the terms of the will?
What does Rule 20 of the Non-Contentious Probate Rules 1987 determine?
Who is entitled to apply to be appointed as administrator with the will - the order of entitlement is initially linked with the beneficiaries under the will.
What is a testamentary guardian?
A guardian appointed by a testator to take over the parental role of their children until they turn 18.
What must a parent have in order to appoint a testamentary guardian?
Parental responsibility - all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property (s3(1) Children Act 1989).
Under what circumstances will a mother have parental responsibility under the Children Act 1989?
A mother always has parental responsibility for her children.
Under what circumstances will a father have parental responsibility under the Children Act 1989?
If he is married to the mother/married the mother after the birth of the child (legitimation)
If the mother has given the father parental responsibility by means of a parental responsibility agreement
The father has acquired parental responsibility on the mother’s death as a result of the mother appointing the father as testamentary guardian in her will
If he has been given it by court order
Under what circumstances will a second female parent have parental responsibility under the Children Act 1989?
If she is married to the mother at the time that she has the relevant fertility treatment (provided the second female consented to the mother’s treatment)
If the mother has given the second female parental responsibility by means of a parental responsibility agreement
The second female has acquired parental responsibility on the mother’s death as a result of the mother appointing the second female as testamentary guardian in her will
If she has been given it by court order
Who takes responsibility of a child where where is a second parent with existing parental responsibility (e.g. a stepmother/stepfather)/appointed guardian and (b) a surviving parent.
The surviving parent.
Where a child has two parents with parental responsibility, what should they consider doing when preparing their wills (particularly when in the midst of a divorce/dissolution)?
The parents should consider appointing the same guardians in each will to avoid a dispute over which guardian looks after the children if both parents die.
Should a will be relied upon to give direction as to the testator’s funeral and body disposal wishes?
No, as wills sometimes aren’t checked until funeral arrangements are made or after the funeral has taken place. A testator should be advised to consult their closest relatives/friends so others are aware of their wishes.
Are directions about the funeral/body disposal set out in a will binding on personal representatives?
No - the personal representatives do not have to carry out the testator’s wishes.
What should testators be aware of with respect of reviewing their will?
Changes in life circumstances (divorce/dissolution, death of testator’s/trustees/beneficiaries, additional children)
Changes in law (e.g. changes to IHT rules
What four tips does SRA guidance on Drafting and Preparing wills provide solicitors with on the storage of wills?
Ensure that all of the testator’s executors know where to find the original version of the will
Keep a copy of the will at the testator’s home with the relevant details
The testator should keep the solicitor informed of any changes to their address or contact details
The testator should review their will regularly to make sure it still reflects their wishes and cirumstances
How should it be evidenced that handwritten amendments were made before a will was executed?
The testator and two witnesses should write their initials next to each handwritten amendment, or in the margin next to each alteration.
What is the presumption where an alteration to a will is unattested?
It is rebuttably presumed to have been made after execution.
Does the filling in of a blank space in a will need to be attested as an alteration?
No, the rebuttable presumption is that this was done prior to execution (although this may be rebutted by adducing evidence to the contrary).
When will HMCTS require evidence that an amendment was made before the will was signed, if the amendment is unattested?
When the executors are applying for the grant of probate.
What is an affidavit?
A formal statement where the person making it swears to the truth of the statement on a holy book or affirms the statement as a secular alternative.
What form would extrinsic evidence proving that the unattested amendment take and who would provide this?
One of the witnesses would provide an affidavit or submit a statement of truth to state that the amendment had in fact been made before the will was signed, even though it had not been initialled.
When will an alteration made after a will has been executed be effective (per s21 Wills Act 1837)?
If the amendment itself is duly executed (in practice, it is sufficient if the testator and two witnesses initial the alteration or margin) - easy to do if changes are made shortly after will is signed when both witnesses are still present.
If the amendment is an obliteration of the original wording and the original wording or effect of the will is, as a result of the alteration, not apparent
When is wording regarded as ‘apparent’?
If it can be deciphered by ‘natural means’ without resorting to:
‘forbidden methods’ (e.g. use of chemicals or infrared photography)
extrinsic evidence (e.g. statements from witnesses or drafts/copies of the will)
Under what three circumstances will an alteration to a will be ineffective?
If it is unattested and made by the testator after (or it cannot be established to have been made before) execution and does not amount to obliteration
If it is made by someone other than the testator and without their knowledge and approval
If it is made by the testator without an intention to revoke
What are the consequences of an invalid alteration where the original wording is ‘apparent’?
The original wording will be admitted to probate.
What are the consequences of an invalid alteration where the original wording is not ‘apparent’?
The amendment will amount to an obliteration and will usually be effective to exclude the original wording (the will is then prima facie admitted to probate with a blank space where the obliteration has occurred).
What is the doctrine of ‘conditional revocation’?
Allows the court to employ any of the forbidden methods (e.g. use of chemicals or infrared photography) and extrinsic evidence (e.g. statements of witnesses or drafts of the will) in an attempt to ascertain and give effect to the original wording.
Enables the court to consider the wording of an unsigned draft of the will or photocopy of the signed will before it had been amended.
What are the two best ways to amend a will?
Making a new will
Adding a codicil to the will
Note 
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