Wills and the Administration of Estates

Which types of property pass outside of the will and intestacy rules? (4)

- Joint property
- Insurance policies
- Pension benefits
- Trust property

How does property held by beneficial joint tenants pass?

The deceased's interest passes by survivorship to the surviving joint tenant(s).

How do the proceeds of life insurance pass?

Where a person takes out a simple policy of life assurance, the benefit of that policy belongs to them.

On the person's death, the policy matures and the insurance company will pay the proceeds to the deceased's personal representatives who distribute it according to a will/ intestacy rules

How do the proceeds of life insurance pass, if they are written into a trust?

The benefit of the policy does not belong to the policy holder.

On the policy holder's death, the policy matures and the insurance company will pay the proceeds to the named beneficiaries (or to trustees for them) regardless of the terms of the deceased's will or the intestacy rules

How do pension benefits for an employee who 'dies in service', pass?

They do not belong to the employee during their lifetime.

Pass on death independently of terms of the will or intestacy rules.

Letter of wishes not binding on pension fund trustees, but they normally comply with wishes.

What happens if the deceased had an equitable interest as a beneficiary of a trust?

Where the equitable interest comes to an end on the beneficiary's death,
the trust property will devolve according to the terms of the trust and not the deceased life tenant's will.

In which order should a solicitor deal with the deceased assets? (3)

1. property passing outside the will
2. property passing under the will
3. any property not disposed of in 1 and 2 which will pass on intestacy

What is a revocation clause?

Revokes prior wills. It is important to include such a clause to make it clear that earlier wills are of no effect

What is the effect of directions as to disposals of the body being included in a will?

No legal effect.

What is the role of the executor?

1. deals with the testator's affairs after death - collect in testators assets, pay off debts and IHT, and distribute assets under the will.
2. apply to His Majesty's Courts and Tribunals Service Probate for a grant of probate which confirms the will is valid and the executor has authority to act

When will HMCTS not make a grant of probate?

Where there is doubt as to the validity of a will

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?

This is 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.

An example would be ‘I give 100 shares in X plc to my son’. If the testator does not own 100 such shares at his death, then they must be purchased

What is a demonstrative gift?

A general gift paid from a specific source - ie a specific bank account or safe.

If the account exists at the date of death and the gift is for more than £500, the legacy is paid out of that account and classed as a specific gift.

If the specific source does not exist, or if the gift is less than £500, the gift is paid from the rest of the estate and classed as a general gift.

What is a pecuniary gift?

gift of money

What is a residual gift?

property remaining after everything else is given

What are the three requirements for a valid will?

1. Capacity
2. Intention
3. Formalities

What is the test for capacity?

Testators must understand:

1. the nature of their act and its broad effects (the fact that they are making a will which will have effect on their death);
2. the extent of their property
3. the moral claims they ought to consider (even if they decide to reject such claims and dispose of their property to other beneficiaries).
4. must not be suffering from any insane delusion

At what time must the testator have capacity? And what is the exception to this?

At the time their will is executed.

BUT, under Parker v Felgate, 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. The will is valid if:

- the instructions were given to a solicitor, who prepared the will in accordance with the instructions, and;

- at the time the testator executes the will, they appreciate that they are signing a will prepared in accordance with their previous instructions

What happens if someone is mentally incapable of making a will?

A 'statutory will' may be made on their behalf under the Mental Capacity Act (MCA)

What is the 'golden rule' regarding capacity? (5) Kenward v Adams (1975)

1. The will is void if the testator lacks capacity.

Golden rule:

The solicitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and also ask the doctor to witness the will.

The solicitor should record their own view of the testator’s capacity in a file note. The written evidence should be kept on the file in case someone challenges the validity of the will after the testator’s death

What is the presumption of capacity?

If someone wishes to challenge the will on the basis of lack of capacity, the burden shifts to them

When does the presumption of capacity apply? (2)

1. Will is rational

2. Testator showed no evidence of mental confusion before making the will

What types of intention must a testator have for a will to be valid? (2)

1. General intention: intention to make a will vs another document

2. Specific intention: intention to make the particular will being executed and know and approve its contents

When does the presumption of knowledge and approval not apply? (2)

1. Testator blind/illiterate/not signing personally

2. Suspicious circumstances

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 extra evidence does the HMCTS need if the testator is blind/illiterate/not signing personally?

- Evidence to prove knowledge and approval before they will issue a grant of probate.
- It is usual in such cases to 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 should a solicitor do if a third party instructs them to draw up a will, in absence of testator? (2)

1. not accept instructions 2. or interview testator in absence of third party

Where a testator has capacity and knowledge and approval of the contents of the will, what must someone seeking to challenge the will prove?

1. Force or fear (through actual or threatened injury)

2. Fraud (after being misled by some pretence)

3. Undue influence (coercion or duress - NOT persuasion)

4. Mistake (any words included without the knowledge and approval of the testator will be omitted from probate - does NOT include legal words they don't understand)

What are the formalities of will execution? (4)

No will shall be valid, unless it is:
1. in writing
2. signed
3. testator must have intended to give effect to the will by his signature
4. signature must be witnessed by two or more persons present at the same time, and each witness attests and signs the will, or acknowledges the signature in the presence of the testator

What are the requirements for a will to be in writing?

1. No restrictions on materials, need not be written on paper, can be in Braille
2. probably cannot be an electronic will held only on a computer, too easy to change

Formalities of will execution (s9 Wills Act):

No will shall be valid unless—

(a) it is in writing, and signed by 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—

(i) attests and signs the will; OR

(ii) 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.

When can someone sign the will on the testators behalf? (2)

1. When they are too weak or have an injury
2. testator must give the person a positive and discernible direction (verbal or non-verbal) that they want the person to sign on their behalf.

What does 'presence' of a witness of a will mean? (2)

1. mental presence - they know the testator is signing a document but they don't need to know it's a will
2. physical presence - unobstructed line of sight when the testator is signing the will

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

The Will is valid but the gift under the Will fails

What is remote witnessing of a will and when is it allowed?

Presence could be done by video call during Covid (September 2020 - Jan 2024)

Applied only where testators signed the wills themselves

What is the only exception to the rule that a Will must be in writing?

Privileged Wills: A will made on actual military service or by a mariner or seaman at sea may be in ANY form (exception to s9), including a mere oral statement (s 11 Wills Act 1837).

Testator must only intend to dispose of their property

Solicitors duties regarding wills:

1. Clear instructions to client
2. explain how to sign and witness will
3. warning that beneficiaries and those married to them shouldn't be witnesses
4. preferable to execute at the office
5. if not, solicitor should check that s9 has been adhered to

can courts rewrite a will?

No, even if others think this would better reflect the testator's wishes

Court's basic presumptions of interpretation

1. Insofar as any part of the will is
meaningless OR
2. the language used is ambiguous OR
3. evidence (other than evidence of the testator's intention) shows that the language is ambiguous in the light of the surrounding
circumstances.

Only an aid to interpretation - CANNOT be used to rewrite a will

Court's powers of rectification

Apply where the testator's intentions are clear but the wording of the will does not carry them into effect

When do court's powers of rectification become exercisable?

where the will fails to carry out the testator's intentions and that failure has one of two causes: either in consequence of a clerical error or a failure to understand instructions

Will is said to 'speak from the date of death'

Assets are determined according to those in existence at the date of death of the testator

This is trust UNLESS a contrary intention is expressed in the will e.g. 'the house that I now own'

Identifying beneficiaries - will 'speaks from the date of execution'

References to beneficiaries will means those alive at the time of the time of execution, not necessarily death

e.g. If the will contains a gift made, say, to 'Kate's eldest daughter'. If Kate has two daughters, Emily and Jenny, and Emily is the elder of the two, the gift passes to Emily. If Emily dies before the testator, the gift does not pass to Jenny as she did not fit the description of eldest daughter at the time of execution

Gifts to 'my children'

General rule: refers to blood children only, not step-children

General rule will NOT apply if the will provides otherwise

Exception: Adopted child treated as child of adoptive parents, NOT blood parents

Gender recognition - s15

When a person legally acquires a different gender, the acquired gender does not affect a person's beneficial entitlement under 'a will or other disposition made before' the GRA came into force.

However, for wills made after the GRA came into force on the 4 April 2005, the explanatory notes to the GRA state that:-
'if a will refers to the 'eldest daughter', and a person who was previously a son becomes the 'eldest daughter' following recognition in the acquired gender, that person will inherit as the 'eldest daughter'.'

Gender recognition - s18

Where the disposition or devolution of any property under a will is different from what it would

be but for the fact that a person’s gender has become the acquired gender under the Act, an application may be made to the High Court where expectations have been defeated.

Where the court is satisfied that it is just to make an order, it has a wide discretion as to the appropriate order to make.

Gender recognition - s17 - how are trustees and personal representatives protected?

Trustees and personal representatives are protected under s 17 from:

(a) being under any duty to enquire whether a full gender recognition certificate has been issued or revoked before conveying or distributing any property; and

(b) being liable to any person by reason of a conveyance or distribution of property made without regard to whether a full gender recognition certificate has been issued to any person or revoked without the trustee or
personal representative having been given prior notice

Spouses vs civil partners

The terms 'husband/ wife' and 'civil partner' are not synonymous.

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

What happens where a gift fails?

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 the intestacy rules

When will a gift fail? - 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 fail for uncertainty

Exception: 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.

When will a gift fail? - beneficiary witnesses the will

If a beneficiary, or their spouse or civil partner, acts as a witness, the gift to the beneficiary fails (s 15 Wills Act 1837).

However, the beneficiary or spouse/ civil partner remains a competent witness and so the will is validly executed

Exception: 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.

When will a gift fail? - divorce/ dissolution

Where 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

Separation does not count

Ademption

A specific legacy (ie a gift of a particular item or group of items of property) 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

Ademption - asset changed nature

If there has only been a change in substance, the gift will be adeemed

Ademption - increase / decrease

If the property given is capable of increase or decrease (eg, 'my shares', 'my jewellery'), the testator will normally be taken to have made a gift of any items satisfying the description at death.

Codicil

Supplement to a will which must be executed in the same way as a will

Republishes the will as at the date of the codicil - e.g. f 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

Gift fails - 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 substitutional gift. If a gift of residue lapses, the property passes under the intestacy rules, unless the testator has included a substitutional gift in the will.

Death of beneficiary and testator

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, s184 provides that the elder of the two is deemed to have died first. If the testator was older than the beneficiary, the gift takes effect and the property passes as part of the beneficiary's estate

Survivorship clauses - gifts

Gifts in wills are made conditional upon the survival of the beneficiaries for a specific period of time, such as 28 days.

These survivorship provisions prevent a gift from taking effect where the beneficiary survives the testator for only a relatively short time or is deemed to have survived by s 184

Lapse of gifts to more than one person

A gift by will to two or more people as joint tenants will not lapse unless all the donees die before the testator. If a gift is made 'to A and B jointly' and A dies before the testator, the whole gift passes to B.

If the gift contains words of severance, for example 'everything to A and B in equal shares', this principle does not apply

If the gift is a class gift (eg 'to my nieces and nephews equally if more than one'), there is no lapse unless all the members of the class predecease the testator

s33 Wills Act

If you leave a gift in your Will to your child and that child dies before you, if the child leaves issue of their own (children, grandchildren etc.) they will automatically become entitled to their share of the estate UNLESS the will shows a contrary intention

Disclaimer

A beneficiary 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

BUT a beneficiary who has received a benefit from a gift (eg a payment of income) is taken to have accepted the gift and may no longer disclaim

Forfeiture

A person should not benefit from the estate of a person they have unlawfully killed UNLESS the killer was insane

Relief against the forfeiture rule

In cases of unlawful killing other than murder, the Forfeiture Act 1982 allows the court to modify the effect of the forfeiture rule

The killer must apply for the relief within three months of conviction - court has no discretion to extend the period

3 situations in which intestacy rules operate:

1. Where there is no will either because the deceased never made a will at all or all wills have been successfully revoked (total intestacy).

2. Where there is a will, but for some reason it is invalid or it is valid but fails to dispose of any of the deceased's estate (total intestacy).

3. Where there is a valid will, but it fails to dispose of all the deceased's estate (partial intestacy).

What is the only way to avoid intestacy rules?

make a will

What is the 'statutory trust' in intestacy rules? (2)

1. imposes a trust over all property in respect of which a person dies intestate
2. held on trust by those dealing with the estate - the personal representatives

What does the statutory trust in intestacy rules compel the personal representatives to do?

1. pay the funeral, testamentary, administration expenses and debts
2. can sell assets to do this if needed
3. the 'residuary estate' to be shared among the family under the rules of distribution set out in s 46 AEA 1925.
4. they have the power of sale but do not have to sell if it is not in the interest of the beneficiaries

What does the term family not include in terms of distribution in intestacy rules?

an unmarried partner EVEN IF relationship is very long

Meaning of spouse/civil partner in intestacy rules: (4)

1. married at the time of death
2. if the marriage was void as a matter of law ie underage then doesn't count
3. a voidable marriage (for example undue influence) counts until the court makes a nullity order
4. civil partner is same rules as marriage
5. former spouses are EXCLUDED but only from the point when marriage is legally at an end

Meaning of 'issue' in intestacy rules:

1. all direct descendants of the deceased: ie children, grandchildren, great grandchildren, etc.
2. Adopted children (and remoter descendants)
3. children whose parents were not married at the time of their birth
4. step children are NOT included unless adopted

If the intestate is survived by the spouse/civil partner and issue, how is the residuary estate distributed? (3)

1. The spouse or civil partner receives the personal chattels absolutely.
2. the spouse or civil partner receives a 'statutory legacy' free of tax and costs plus interest from death until payment. Currently £322k
3. the rest is divided in half - one half on trust for the spouse absolutely and the other held for the issue on the statutory trusts

If the residual estate is worth less than £322k, the spouse takes it all.

How long must the spouse or civil partner survive to inherit under the intestacy rules?

28 days of the intestate

What happens if the family home is held in the intestate's sole name or as tenants in common?

It will not automatically pass to the spouse like if they were beneficial joint tenants. In this case it will form part of the residuary estate and therefore subject to intestacy rules.

What happens if the family home is held in the intestate's sole name or as tenants in common AND the spouse or civil partner is living in the property?

the surviving spouse/civil partner can require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate

e.g. their entitlement is £500,000 and house is worth £300,000 - spouse can choose to keep the house as part of entitlement (200k left)

In intestacy rules, what happens if the property is worth more than the entitlement of the spouse or civil partner? An when must this right be exercised?

the spouse/ civil partner may still require appropriation provided they pay the difference, 'equality money', to the estate.

The spouse must notify the PRs in writing within 12 months of the grant of representation

Intestate rules - where does residuary estate pass to after the spouse?

The intestate's issue on statutory trust

The statutory trusts determine membership of the class of beneficiaries, and the terms on which they take, as follows (s 47 AEA 1925): children and issues (4)

1. primary beneficiaries are children
2. interests of children contingent on turning 18. Any child who fulfils the contingency at the intestate's death takes a vested interest
3. if child predeceases the intestate, their children get their share. shares are done by family branch (per stirpes distribution)
4. same if they die without attaining vested interest

Are step-children classed as 'issue'?

No, unless they are legally adopted.

Distribution under intestacy rules where there is no surviving spouse or partner, or they die within 28 days of the interstate. The residuary estate goes to: (8) and how?

(a) issue on the 'statutory trusts', but if none,

(b) parents, equally if both alive, but if none,

(c) brothers and sisters of the whole blood on the 'statutory trusts', but if none,

(d) brothers and sisters of the half blood on the 'statutory trusts', but if none,

(e) grandparents, equally if more than one, but if none,

(f) uncles and aunts of the whole blood on the 'statutory trusts', but if none,

(g) uncles and aunts of the half blood on the 'statutory trusts', but if none,

(h) the Crown, Duchy of Lancaster, or Duke of Cornwall (bona vacantia).

If someone exists highest in the list, they get everything (split if more people in the same category) and those lower get nothing

In which parts of the country will bona vacantia not pass to the crown?

Lancashire & Cornwall.

(The Duchy of Lancaster and duchy of Cornwall would take these, respectively)

Where an estate passes bona vacantia, the Crown (through the Treasury Solicitor), the Duchy of Lancaster or Duke of Cornwall has a discretion to do what? What could it and could it not be used for, for example?

Provide for dependants of the intestate and for people who the intestate might reasonably have been expected to make provisions.

Could be used for someone who had a close relationship but no entitlement under the intestacy rules for step-child or cohabitant

Overlap between bona vacantia and the Inheritance (Provision for Family and Dependants) Act 1975

Allows qualifying individuals to apply to the court for provision from the state - all claims should be brought under the act so they can all be weighed together

What actually happens to funds that pass bona vacantia? (3)

1. the Crown hands them over to the HM Treasury to be used in the same way as money collected through taxes;
2. the Duchy of Lancaster donates the money to charity;
3. and in Cornwall the money is paid to the Duke of Cornwall's Benevolent Fund which provides grants for charitable purposes.

How is an adopted child treated for intestacy purposes?

As children of their adoptive parents

An adopted child may also inherit on the intestacy of any member of their adoptive family

What happens if a minor child has a contingent interest in an estate and is then adopted?

Any contingent interest which an adopted person had immediately before the adoption in the estate of a deceased natural parent is preserved

What is the presumption for an illegitimate child and what does this mean for the personal representative?

When does this not apply?

That they have not been survived by their father, or anybody related to their father, unless the contrary is shown.

This doesn't apply if the father is named on the birth certificate.

What is the Human Fertilisation and Embryology Act 2008?

Act which deals with the conferring of legal parenthood with respect to children born as a result of assisted reproduction.

Under HFEA - who is the mother?

the woman who gave birth to the child

Under HFEA - who is the legal father of the child in heterosexual relationships?

where the mother undergoes assisted reproduction using donated sperm, and she is in a heterosexual marriage at the time of the treatment, it is her husband who is the legal father of the child (unless he did not consent to the treatment).

Under HFEA - who is the second parent in homosexual relationships

where the mother undergoes assisted reproduction using donated sperm, the mother's wife or civil partner is the child's other legal parent ('second female parent)

What are the intestacy rules relating to surrogacy?

The commissioning parents are able to apply for a court order to be legal parents and the child is treated as a child for all purposes.

What meaning do technical and non-technical words bear in wills and how can this presumption be rebutted?

non-technical: ordinary

technical: technical

Can be rebutted if it is clear testator was using in different sense

When is extrinsic evidence allowed to ascertain testator's intentions (s 21 Administration of Justice Act 1982:)(3)

1. a part that is meaningless
2. language is ambiguous on the face of it
3. language is ambiguous in these circumstances

Thorn v Dickens [1906]

Will referred to 'mother'. mother had been dead at time of will. testator actually referred to his wife as 'mother'

the court has very little power to change a will but they have a small power to rectify it when: (3)

1. intention is clear but wording does not uphold this
2. clerical error
3. solicitor's failure to understand instructions

In what way is section 20 regarding rectifying wills very narrow?

It would not be possible, for example, to rectify a will because the solicitor who wrote the will misunderstood the law or thought that the words chosen achieved the desired outcome, but they did not do so.

At what point are assets determined?

As if it were right before the death - ie if 'my collection of cars' this will be number taken just before death

What are references to beneficiaries construed as?

people alive at the time of the will's execution