Validity of Wills and How Property Passes on Death

Comprehensive practice flashcards covering the validity of wills, types of legacies, and the administration of estates based on the SQE1 syllabus.

Beneficial joint tenants

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

Tenants in common

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

Personal representatives (PRs)

The people who administer an estate after the deceased's death, responsible for distributing assets according to the terms of a will or the intestacy rules.

Testator

A person making a will (referred to as a testatrix if female).

Codicil

A testamentary document used to amend or add to an existing will.

Revocation clause

A provision in a will, typically clause 1, that makes it clear all earlier wills and codicils are of no effect.

Executor

A personal representative (executrix for a woman) appointed by the testator to collect assets, pay debts and taxes, and distribute the remaining assets to beneficiaries.

Grant of probate

A document issued by His Majesty's Courts and Tribunals Service (HMCTS) confirming the validity of a will and the authority of the executor to act.

Legacy

The term for a gift of personalty (personal property) in a will, though it is often used loosely to cover both realty and personalty.

Devise

The legal term for 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 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 the item at death, executors must purchase it using estate funds.

Demonstrative gift

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

Pecuniary gift

A legacy consisting of a gift of money.

Residuary gift

A sweeping-up provision comprising all money and property left ('the residue') after debts, expenses, and all other legacies have been paid.

Banks v Goodfellow test

The common law test for testamentary capacity which requires the testator to understand the nature of their act, the extent of their property, and the moral claims they ought to consider.

Parker v Felgate (1883)

Case establishing that a will is valid if the testator had capacity at the time instructions were given to a solicitor, even if capacity was lost by the time the will was executed.

The 'golden rule'

A recommendation from Kenward v Adams (1975) that a solicitor should have a medical practitioner provide a report confirming testamentary capacity and witness the will if the testator's mental state is in doubt.

Presumption of capacity

A legal presumption that the testator satisfied the mental capacity test if the will is rational on its face and the testator showed no evidence of mental confusion.

Specific intention

The requirement that a testator must know and approve the specific contents of the will they are executing.

Suspicious circumstances

Situations (e.g., a beneficiary drafting the will) where the presumption of knowledge and approval is removed, requiring the person putting forward the will to prove the testator knew and approved its contents.

Undue influence

Coercion or duress where the testator's freedom of choice was overcome by intolerable pressure; persuasion alone does not constitute this.

Section 9 Wills Act 1837

The statutory provision setting out formal requirements for a valid will: it must be in writing, signed by the testator (or at their direction), intended to give effect to the will, and witnessed by two or more people.

Attestation clause

A clause at the end of a will recites that the Section 9 formalities were observed, raising a presumption of due execution.

Privileged wills

Informal wills (written or oral) made under Section 11 Wills Act 1837 by soldiers on actual military service or by mariners or seamen at sea.