Validity of Wills and how Property Passes on Death

What happens when property is held by more than one person as beneficial joint tenants?

On the death of one joint tenant their interest passes by survivorship to the surviving joint tenant(s)

Does the doctrine of survivorship apply to land held as tenants in common?

No. The share of a tenant in common passes on their death under their will

What happens if a deceased person has an insurance policy that is not in trust

On the person's death, the policy matures and the insurance company will pay the proceeds to the deceased's personal representatives and they will distribute the money according to the terms of any will or the intestacy rules - forms part of the estate

What happens if a person has taken out a life insurance property and writes it in trust for the benefit of any specified individuals?

The insurance company will pay the proceeds to the named beneficiaries regardless of the terms of the deceased's will or the intestacy rules and the money - does not form part of the estate

What do pension schemes allow for?

Provide for the payment of benefits if an employee dies 'in service'. Such discretionary schemes usually allow employees to leave a letter of wishes for the trustees indicating which people they would like to benefit but it not binding on the pension fund trustees. Such benefits do not belong to the employee and pass on death independently of the terms of any will and the intestacy rules

What happens if the deceased was a beneficiary of a trust?

The deceased may have had an equitable interest as a beneficiary of a trust. The trust property will devolve according to the terms of the trust and not the deceased's life tenant's will

What do you call a person who is making a will?

Testator

What is a revocation clause?

Makes it clear that earlier wills are of no effect

What is an executor and what is their role?

The person who deals with the testator's affairs after their death. Their task is to collect in all the testator's assets, pay the deceased's debts and any inheritance tax and then distribute the remaining assets to whoever is entitled under the will. After someone has died, the executor will make an application to His Majesty's Courts and Tribunals Service Probate for a grant of probate which confirms that the will is valid and that the executor has authority to act?

What is the difference between 'Legacies' and 'Device'

'Legacies' is the term of gifts of personalty (personal property e.g. money, jewellery, shares, cars)

'Devise' is a gift of realty (e.g. land or real property)

What is a specific gift?

Gift of a specific item or items which the testator owns, which is distinguished in the will from the rest of the testator's assets

What is a general gift?

A gift of an item or items corresponding to a description. If the testator does not own the item(s) at death, the executors must obtain the item(s) using funds obtained from the estate

What is a demonstrative gift?

A gift that is general in nature but is directed to be paid from a specific fund e.g. 'I give £500 to X to be paid from my Nationwide savings account'

What is a pecuniary gift?

A gift of money, which can be general, demonstrative, or specific.

What is a residuary gift?

Comprises all the money and property left after the testator's debts, the expenses of dealing with the state and the other gifts made under the will have all been paid

What are the requirements for a valid will?

1. Capacity

2. Intention

3. Formalities (Wills Act 1837)

A failure to meet one requirement invalidates the will

What is the test for capacity?

'Soundness of mind, memory and understanding' (Banks v Goodfellow). Testators must understand: the nature of their acts and its broad effects, the extent of their property, and the moral claims they ought to consider.

Testators must have capacity at the time they execute their wills but Parker v Felgate said a will can be valid if the testator has capacity when they give instructions for the will even if they lose capacity by the time the will is executed

When will a Court of Protection approve a draft will?

Only if it is in the testator's best interests

What is the golden rule for capacity?

If the testator lacks capacity, the will is void. The solicitor should ask a medical practitioner to provide a written report confirming their capacity and also ask the doctor to witness the will. The solicitor should record their own view of the testator's capacity and keep the written evidence in case someone challenges the validity of the will.

What is the general rule for proving if there was capacity?

It is for the person who is asserting that a will is valid to prove it. It is likely to be difficult to gather evidence of the testator's mental state when the will was made so executors are usually able to rely on a presumption

What is the presumption of capacity?

Presumption that the testator satisfied the mental capacity test. The presumption applies if the will is rational on its face and the testator generally showed no signs of mental confusion before making the will

What is intention?

When the will is signed, the testator must have both general and specifical intention. The testator must intend to make a will and must intend to make that particular will. The testator must know and approve the contents of the will at the time when the will is executed.

What is the general rule for intention?

It is for the person asserting that a will is valid to prove it. Usually not necessary to prove intention because a presumption of knowledge and approval arises

What is the presumption of knowledge and approval?

A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval.

What are the exceptions to the presumption of knowledge and approval

(1) The testator is blind/illiterate/not signing person

(2) Suspicious circumstances (e.g. the will has been prepared by someone who is to be a major beneficiary under its terms)

The executor or person putting forward the will must remove the suspicion by proving that the testator did actually know and approve the will's contents

(3) Where a testator with capacity appears to have known and approved the contends of the will, any person who wishes to challenge the will must prove force, fear, fraud, undue influence and mistake. The presumption of knowledge ad approval does not apply if all or part of the will was included by mistake

What is useful to include if the testator is blind/illiterate/not signing properly?

Include a statement at the end of the will stating that the will was read over to the testator, or read by the testator who knew and approved the contents

What are the formalities of execution?

Section 9 of the Wills Act 1836:

No will shall be valid unless -

(a) it is in writing, and signed by the testator (or the signature was sufficient to identify the testator), or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time and

(d) each witness either -

attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness)

What happens if a witness is a beneficiary under the will or is the spouse of a beneficiary?

The will remains valid but the gift to the witness or to the witness's spouse fails (s 15 Wills Act 1837)

What is a privileged will?

An exception to the rule that wills must comply with the requirements of s 9. a will made on actual military service or by a mariner or seaman at sea may be in any form, including a mere oral statement. The only requirement is that the 'testator' intends to dispose of his property after his death

What is the general rule for the execution of wills?

It is for the person who is asserting a will is valid to prove it. But there is a presumption of due execution

What is the presumption of due execution?

The presumption arises if the will includes a clause which rectifies that the s 9 formalities were observed, such as, 'signed by the testatrix in our joint presence and then by us in hers' (attestation clause)

Burden of proof on the person challenging that the will was not validly executed

What happens if the will does not contain the attestation clause

Will require an affidavit of due execution from a witness or any other person who was present during the execution or an affidavit of handwriting evidence to identify the testator's signature, or they will refer the case to a judge

What is the duty of a solicitor during the execution of a will

Solicitors must give clear instructions explaining how to sign and witness the will, and warning that beneficiaries and those married to or in a civil partnership with beneficiaries should not be witnesses. It is preferable for the clients to execute at the solicitor's office where execution can be supervised. If the testator executes the will at home, the solicitor should ask them to return the will so that the solicitor can check that s 9 appears to have been complied with and that the witnesses are not beneficiaries or their spouses or civil partners

What order should you approach a deceased person's assets?

Do any assets pass independently of the will or intestacy rules?

Is there a valid will which disposes of the remaining property?

if there is no valid will or it does not dispose of all the deceased's property, apply the intestacy rules

When interpreting a will, what basic presumptions will the court apply when trying to establish the testator’s intentions?

• Non-technical words bear their ordinary meaning

  • It is possible for some words to have several different meanings and then the court has to try to determine the meaning the testator intended given the context of the will as a whole

• Technical words are given their technical meaning

  • E.g. in Re Cook [1948] the testatrix made a gift of ‘all my personal estate…’ the court gave the word ‘personal’ its technical meaning of personalty as opposed to realty

These presumptions may be rebutted if from the will it is clear that the testator was using the word in a different sense

What is the basic rule when courts interpret a will?

The court interprets the will by looking at the words in the will itself. The basic rule is that the court is not prepared to consider other evidence in order to try to establish what the testator intended. If the meaning remains unclear the gift will fail for uncertainty

When can extrinsic evidence be used?

Section 21 Administration of Justice Act 1982 states:

(1) This section applies to a will:

(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the face of it;

(c) in so far as evidence, other than evidence of the testator’s intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator’s intention, may be admitted to assist in its interpretation.

Section 21 permits extrinsic evidence to be admitted to interpret the will insofar as any part of the will is meaningless or the language used is ambiguous or evidence (other than evidence of the testator’s intention) shows that the language is ambiguous in the light of the surrounding circumstances. Extrinsic evidence can only aid an interpretation, it cannot be used to rewrite the will

When does the court have the power to correct or rectify a will?

This arises where the testator’s intentions are clear, but the wording of the will does not carry them into effect

This narrow power is found in s 20 Administration of Justice Act 1982: If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

(a) of a clerical error; or

(b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.

What does ‘clerical error’ mean?

It would include writing or omitting something by mistake

What should happen when the wording of the will has been establish?

The personal representatives will need to give effect to them. When the personal representatives have decided what property is capable of passing under the will, they must apply the terms of the will to that property

What does it mean to say that a will ‘speaks from the date of death’?

A will is generally interpreted as if it was made immediately before the testator’s death. Therefore, gifts generally relate to the assets the testator owns at the date of death, not when the will was originally made

Section 24 Wills Act 1837: ‘Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will

What happens to a gift of ‘all my estate’ or ‘all the rest of my estate’?

It generally includes all property the testator owns at the date of death, even if they did not own it when they made the will

Can a will contain a contrary intention to the ‘date of death’ rule?

Yes, the will can use specific wording showing that the testator intended to refer to the assets they owned when the will was made

What wording might show that a gift refers to property owned when the will was made?

Words referring to the present/time of making the will, where that reference is essential to the description

What happens where the gift is of generic asset that can increase or decrease between the will and death?

The gift generally refers to the assets in existence at the date of death

What is the general rule when identifying the beneficiaries?

References to beneficiaries are construed as to people alive at the time of the will’s execution - the will ‘speaks from the date of execution’

What is the general rule for the beneficiaries of gifts?

Gifts are taken to refer to blood relationships. So, a gift ‘to my children’ will be a gift only to the testator’s own children and not to the children of the testator’s spouse or civil partner

How are adopted children normally treated in a will?

Treated as children of the adoptive parents, although the will may provide otherwise. An adopted child would be included within the description of ‘children’ in their adoptive parents’ will, but not in the will of their birth parents before their interest in an estate becomes vested, their interest is unaffected

How are children born outside of marriage treated under a will?

It is irrelevant whether or not a child’s parents are married to each other

What does s 18 Gender Recognition Act 2004 provide in relation to wills and property?

If a person’s acquired gender changes the way property passes under a will or other instrument, and this defeats someone’s expectations, an application can be made to the High Court. If the court considers it just, it has a wide discretion to make an appropriate order

What orders can the Higher Court make under s 18 Gender Recognition Act 2004?

The court has a wide discretion order:

• Payment of a lump sum

• Transfer of property

• Settlement of property

What protection does s 17 Gender Recognition Act 2004 give trustees and personal representatives?

They are protected from:

1. Having a duty to investigate whether a full gender recognition certificate has been issued or revoked before distributing/conveying property; and

2. Being liable to another person because they distributed/conveyed property without knowing about the certificate or its revocation

Can a person still recover property distributed despite the protection given to trustees/personal representatives under s 17?

Yes, the person can still follow the property, or property representing it, into another person’s hands but they cannot recover it from someone who: purchased it for value, in good faith and without notice

What are the implications of the terms ‘husband/wife’ not being synonymous with ‘civil partner’?

A gift to ‘John’s wife’ will fail if John never marries but enters a civil partnership instead

What happens if gifts made under the will fail?

The basic effect is that the subject matter falls into the residuary estate and will be taken by the residuary beneficiary; where a gift of residue fails there will be a partial intestacy and the residuary estate will pass under intestacy rules. The will itself may be valid, but individual gifts may fail

When will a gift fail for uncertainty?

If it is not possible from the wording of the will to identify the subject matter of the gift or the recipient, the gift will fails for uncertainty. The court will first seek to establish the testator’s intentions and consider its powers of rectification, but if the meaning cannot be discerned the gift fails

What exception does not fail a gift for uncertainty?

A gift to charity which does not sufficiently identify the charity. Provided that it is clear that the gift is exclusively for charitable purposes the court can direct which charity is to benefit

What is the rationale behind the failure of a gift to a beneficiary who is also a witness?

A witness should be impartial. The witness may be called upon to give evidence as to the manner of execution and it would be wrong for them to have a vested interest in proving the will to be valid

Will a gift survive if it is witnessed by the beneficiary’s child or cohabitant?

Yes the gift will survive even if the witness is someone the beneficiary subsequently marries

Will a gift fail if the beneficiary does not sign?

No. If there are three witnesses to the will, one of whom is a beneficiary, the gift to that beneficiary is effective because the will is still validly executed even if the beneficiary’s signature is ignored

What happens if after the date of the will the testator’s marriage or civil partnership is dissolved, annulled or declared void?

‘Any property which, or an interest in which, is devised or bequeathed to the former spouse or civil partner shall pass as if the former spouse or civil partner had died’ on the date of the dissolution or annulment of the marriage or civil partnership

What is ademption?

A specific legacy will fail if the testator no longer owns that property at death. The gift is said to be ‘adeemed’. Ademption usually occurs because the property has been sold, given away or destroyed during the testator’s lifetime

What happens if an asset has been retained but has changed its nature since the will was made?

For example, where the will includes a specific gift of company shares, the company may have been taken over since the will was made so that the testator’s shareholding has been changed into a holding in the new company. The question is whether the asset is substantially the same, having changed merely in name or form, or whether it has changed in substance. Only if there has been a change in substance will the gift be adeemed

What happens if a testator disposes of the property described in a specific gift but before death acquires a different item of property which answers the same description?

It has been held that the presumption in such a case is that the testator intended that the specific gift was to be of the particular asset they owned at the date of the will so that the gift is adeemed

What is a codicil?

A codicil is a supplement to a will which, to be valid, must be executed in the same way as a will. The significance of a codicil in the context of a gift of property is that it republishes the will as at the date of the codicil. Thus, if the testator makes a will in 1990 leaving ‘my gold watch’ to a legatee, loses the watch in 2000 and replaces it, the gift of the watch in the will is adeemed. If, however, the testator executes a codicil to the will in 2003, the will is read as if it had been executed in 2003 and so the legatee will take the replacement watch

What is a lapse?

A gift in a will fails or ‘lapses’ if the beneficiary dies before the testator. If a legacy lapses, the property falls into residue, unless the testator has provided for the possibility of lapse by including a substantial gift. If the beneficiary dies soon after the testator the property passes into the beneficiary’s estate

What if the beneficiary dies before the testator and the testator has made a codicil will?

The general rule is that, as regards people, a will ‘speaks from the date of execution’. A gift made to ‘the eldest son of X’ is taken to mean a gift to the person fulfilling that description at the date the will is made. If that person dies, the gift does not pass to the eldest surviving son. However, if the testator makes a codicil to the will, it republishes the will and the will is treated as made at the date of the republication. Hence, if the eldest son dies between the date of the will and the codicil, the will is construed as referring to the person who is the eldest son at the date of the codicil.

What happens if the deaths of the testator and beneficiary occur very close together?

It is vital to establish who died first. The law of succession does not accept the possibility that two people might die at the same instant. If the order of their deaths cannot be proved, s 184 provides that the elder of the two is deemed to have died first. If the testator was older than the beneficiary, the gift takes affect and the property passes as part of the beneficiary’s estate

When does a gift to two or more people as joint tenants lapse?

It will not lapse unless all the joint beneficiaries die before the testator

What happens if a will gifts a gift “to A and B jointly” and A dies before the testator?

The gift does not lapse. The whole gift passes to B by survivorship

What happens if a gift to A and B contains words of severance?

The beneficiaries take separate shares, rather than as joint tenants e.g. ‘Everything to A and B in equal shares’

If A’s share lapses, B takes only B’s original share and A’s lapsed share passes under the intestacy rules, unless there is a substantial gift

What happens to a lapsed share where there is no substitutional gift?

The lapsed share generally passes under the intestacy rules

What happens to a class gift if one member of the class dies before the testator?

There is no lapse unless all members of the class die before the testator W

What is the difference between a joint gift, a gift in separate shares and a class gift when a beneficiary dies before the testator?

Joint Gift - survivor takes the whole gift

Separate shares - deceased person’s share lapses

Class gift - no lapse; surviving class members take

What is an exception to the doctrine of lapse?

Section 33 does not apply if a contrary intention is shown in the will. Its effect is to incorporate an implied substitution provision into such gifts. It provides that where a will contains a gift to the testator’s child or remoter descendent and that beneficiary dies before the testator, leaving issue of their own who survive the testator, the gift does not lapse but passes instead to the beneficiary’s issue. The issue of a deceased beneficiary take the gift their parent would have taken in equal shares

What happens if a beneficiary does not want to accept a gift?

They cannot be forced to accept a gift. A beneficiary can disclaim the gift, which will then fall into residue or, in the case of disclaimer of a gift of residue, pass on intestacy. A beneficiary who disclaims a gift is treated as having predeceased the testator, which will allow the beneficiary’s issue to replace them under s 33 Wills Act 1837. However, a beneficiary who has received a benefit from a gift is taken to have accepted the gift and may no longer disclaim

What is the forfeiture rule?

An individual should not benefit from the estate of a person they have unlawfully killed or where they have unlawfully aided, abetted, counselled or procured that person’s death. But does not apply where the killer was insane. Subject to a contrary intention in the will, a person who forfeits an entitlement is to be treated as having predeceased the testator

What does the Forfeiture Act 1982 allow the court to do?

It allows the court to modify the effect of the forfeiture rule. The court can modify the effect of the rule in any way including granting complete relief. The court must not make an order unless satisfied that the justice of the case demands it having regard to the conduct of the deceased and the applicant, and all the surrounding circumstances

What is revocation?

Revocation is the formal act of cancelling or withdrawing a will. The effect of revocation is to nullify the will, either as a whole or in part. A testator is free to revoke their will at any time provided that they have capacity to do so

What are the three situations in which a will can be revoked?

• By a later will or codicil

• By destruction or

• By marriage/forming a civil partnership

How can a will be revoked by codicil?

Under s 20 Wills Act 1837 a will may be revoked in whole or in part by a declaration to that effect in a later will or codicil. No particular wording is required, but a professionally drafted will usually begins with a statement such as ‘I hereby revoke all former wills previously made by me’

What if a will does not contain an express-revocation clause?

It operates to revoke any earlier will or codicil by implication to the extent that the two are inconsistent. This could result in complete revocation of the earlier will if the two are totally inconsistent or there could be just a partial revocation in which case the two wills need to be read together in order to piece together the testator’s intentions

Why is it advisable for a will to be dated?

So that the chronology can be established for the purposes of revocation. Exceptionally, the court may construe a testator’s intention to revoke an earlier will by an express revocation clause as being conditional upon a particular event. If that condition is not satisfied, the revocation may be held to be invalid so that the earlier will remains effective (doctrine of conditional revocation or the doctrine of dependent relative revocation)

How may a will be revoked by destruction?

A will may be revoked by ‘burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same’.

Physical destruction is required: symbolic destruction (eg simply crossing out wording or writing ‘revoked’ across the will) is not sufficient, although if a vital part (eg the signature) is destroyed, this partial destruction may be held to revoke the entire will. If the part destroyed is less substantial or important, then the partial destruction may revoke only that part which was actually destroyed. The test is whether the remainder of the will is intelligible and can still operate in the absence of the destroyed part.

The act of destruction must be carried out with the intention to revoke

Who can carry out the act of destruction?

Must be carried out by the testator themselves or by someone else in the testator’s presence and by their direction

What happens if a testator marries or forms a civil partnership after executing a will?

The will is revoked. Revocation is automatic

When does automatic revocation upon marriage or civil partnership not apply?

The rule does not apply where it appears from the will that the testator makes the will prior to and in expectation of a forthcoming marriage or civil partnership with a particular person and that the testator did not intend the will to be revoked. A will made in contemplation of marriage which complies with these requirements is effective even if the intended marriage never takes place, unless the will is expressed as being conditional on the marriage taking place. Although a marriage with anyone other than the particular person anticipated revokes the will

What happens if the testator makes a will and is later divorced?

Under ss 18A and 18C Wills Act 1837 the will remains valid but:

a) provisions of the will appointing the former spouse or civil partner as executor or trustee take effect as if the former spouse or civil partner had died on the date on which the marriage or civil partnership is dissolved or annulled and

b) any property, or interest in property, which is devised or bequeathed to the former spouse or civil partner passes as if the former spouse or civil partner had died on that date

Substitutional provisions in the will which are expressed to take effect if the spouse/civil partner predeceases the testator will also take effect if the marriage/civil partnership is dissolved or annulled

Is a will irrevocable if the testator declares that it is irrevocable in the will?

That declaration will not be binding

What happens if a testator agrees not to revoke their will or not to revoke a particular gift in the will?

Any such agreement cannot detract from the fundamental principle that a will is revocable. But if the agreement amounts to a contract and the testator is in breach, this may give rise to a contractual remedy. This mat result in the estate paying contractual damages to a disappointed beneficiary

What is a mutual will?

Arises where two people make wills in similar terms and agree that whichever of them survives will irrevocably leave their estate in a particular way

When can the doctrine of mutual wills apply?

There must have been an agreement. The wills must have been made as the result of a clear agreement between the testators as to the disposal of their estates and part of that agreement is that the survivor will not revoke their will. Therefore, the constructive trust arises when the first testator dies without having revoked their will

Why does a mutual will not guarantee that the ultimate beneficiary will actually receive their intended benefit?

The survivor, as an absolute owner, is free to use their money and property in whatever way they choose.

What happens if one of the testator’s breaches the agreement?

At that point the first testator has carried out their side of the bargain so it would be wrong to allow the survivor to renege on their side. This is a breach of agreement and so the other testator’s remedy is the contractual one of seeking damages for the loss suffered as a result of the breach. The effect is also to release the other testator from the agreement not to revoke

Rather than revoking a will, how may a testator make additions or amendments to their will

This can be achieve through a codicil. A codicil is a document, executed in the same was as will, which supplements an existing will. A codicil can be used to amend, add to or revoke in part, an existing will. The will and the codicil must therefore be read together in order to ascertain the testator’s wishes. A properly executed codicil has the effect of republishing the existing will

What is the rule for republished wills?

Under s 34 Wills Act 1837, aa republished will is deemed to have been made at the time of republication. So a gift which is invalid because the beneficiary has acted as a witness will be saved if the will is republished by a codicil which is not witnessed by the beneficiary

Can a codicil revive a will?

Yes, a codicil can revive a will which has previously been revoked. To have this effect the codicil must in some way evidence the testator’s intention to revive the will. This could be an express statement or the inclusion of a disposition which means that the testator could have had no other intention but to revive the will. If the changes are substantial it is usually advisable to make a new will rather than rely on a codicil

What happens if a testator wants to make some changes to their will but does not want to go to the lengths of revoking the original or executing a codicil?

The testator can make changes on the face of the will itself. If the alterations were made before the will was executed they are valid provided that the testator intended the alterations to form part of the will. However, any alterations are presumed to have been made after the will was executed unless the contrary can be proved

When can alterations after the will was executed be valid?

If the alterations themselves were executed like a will. However, the initials of the testator and the witnesses in the margin next to the amendment will suffice

What happens if an invalid alteration has been made?

The original wording of the will stands provided that it can be deciphered. The original wording must be ‘apparent’ - the original wording of the will must be capable of being read on the face of the will by ordinary means