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Wills and Administration of Estates: LATEST,COMPLETE GUIDE
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Wills and Administration of EstatesSuccession to property on death: the background law
WHAT PROPERTY CAN PASS BY A WILL OR THE INTESTACY RULES?
If there is a will, estate will pass according to the will, if not then it will follow the intestacy rules.
Some types of property pass on death independently of the terms of will or the intestacy rules.
WHAT PROPERTY PASSES INDEPENDENTLY OF THE WILL?
Joint property
Where property is held by joint tenants in equity, interest passes by survivorship on death.
Where tenant in common, share passes on his death under will (or under intestacy rules).
Nominated property
Can ‘nominate’ what’s to happen to certain types of funds, applies to deposits not exceeding
£5000 certain trustee savings banks, friendly societies and industrial and provident societies.
Nomination is direction to institution to pay money in account, to a nominated third party.
If nomination, property passes regardless of the terms of the will (if any) or intestacy rules.
Insurance policies
Life policy in benefit of person, proceeds paid according with terms of will/intestacy rules.
life assurance policy for benefit of specified individuals - gift on trust – done in 2 ways:
(a) Married Women’s Property Act 1882, s 11 - person taking out a life assurance policy
can express to be benefit for spouse/children - creating a trust in favour of beneficiaries.
(b) A policy may be expressly written in trust for or assigned to named beneficiaries.
Pension benefits
Many pension schemes provide for the payment of benefits if an employee dies ‘in service’.
lump sum calculated on basis of the employee’s salary at time of his death - paid by trustees
of pension fund to members of the family or dependants chosen at their discretion.
usually allow employee a letter of wishes indicating which people to benefit – not binding.
Such pension benefits do not belong to the employee during his lifetime and pass on death
independently of the terms of any will.
THE REQUIREMENTS FOR A VALID WILL
Capacity
Be aged 18 or over (with certain limited exceptions) and have requisite mental capacity.
Banks v Goodfellow (1870) LR 5 QB 549 as ‘soundness of mind, memory and understanding’.
The testator must understand:
(a) the nature of his act and its broad effects;
(b) extent of his property (not necessarily recollecting every individual item); and
(c) the moral claims he ought to consider.
Testator must not suffer from any insane delusion which affects disposition of property.
Proof and presumptions
Common law, must prove all necessary elements, including mental capacity, present.
, Mental Capacity Act 2005 s 1(1) - certain principles apply for purposes of Act, s 1(2) - ‘a
person must be assumed to have capacity unless it is established that he lacks capacity’.
s 1(2) - anyone who alleged lack of capacity to make a will would have to prove it.
Scammell v Farmer [2008] - only case in which the effect of the Act has been considered.
Act applies only to decisions taken on behalf of another under the Act, so it ought not
apply to the assessment of a person’s capacity to make his own will.
Perrins v Holland [2009], Lewison J said, common law test superseded by Mental
Capacity Act 2005.
Intention
When the will is signed, the testator must have both general and specific intention.
Therefore testator must intend to make a will and to make the particular will being executed
Proof and presumptions
Burden of proving testator’s knowledge and approval falls on person putting forward the
will.
A testator who has capacity and has executed his will, having read it, is presumed to have
the requisite knowledge and approval.
this presumption does not apply in the situations listed below.
Testator blind/illiterate/not signing personally
The probate registrar will require evidence to prove knowledge and approval.
It is usual 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.
Suspicious circumstances
Gill v Woodall [2010] EWCA Civ 1430.
Must act within SRA objectives.
Undue influence and mistake
any person who wishes to challenge the will (or any part of it) must prove one or more
of the following to prevent some or all of the will from being admitted to probate.
Force, fear, fraud or undue influence
Mistake
Any words included without the knowledge and approval of the testator will be
omitted from probate.
distinguish between actual mistake and misunderstanding.
Misunderstanding will not invalidate the will.
Formalities for execution
S 9 Wills Act 1837 (as substituted by Administration of Justice Act 1982, s 17) provides:
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.
exception to the rule that wills must comply with the requirements of s 9.
Will made on actual military service or by a mariner or seaman at sea is valid and may be
in any form, including a mere oral statement.
Only requirement - ‘testator’ intends to dispose of his property after his death.
Proof and presumptions
If the will includes a clause which recites that the s 9 formalities were observed, a
presumption of due execution is raised - attestation clause.
The will is valid unless there is proof that the formalities were not observed.
If no attestation clause, district judge must 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
refer the case to a judge
(all of which involve time and expense).
Witnesses
There are no formal requirements relating to the capacity of witnesses, although they
must be capable of understanding the significance of being the witness to a signature.
If witnesses beneficiary under will or spouse/civil partner of a beneficiary, will remains
valid but gift to witness or to the witness’s spouse fails (Wills Act 1837, s 15; see 29.5.3).
If the will is returned to the solicitor for storage, the solicitor is under a duty to check the
signatures to see whether ss 9 and 15 appear to have been complied with.
Revocation
Testators can always revoke a will during their lifetime, provided they have testamentary
capacity.
There are three ways of revoking a will:
By a later will or codicil
Wills Act 1837, s 20, a will revoked in whole or in part by a later will or codicil.
Normally, a will contains an express clause revoking all earlier wills and codicils.
If no express clause it operates to revoke any earlier will or codicil by implication to
the extent that the two are inconsistent.
By marriage or formation of a civil partnership
automatically revoked (Wills Act 1837, s 18).
not apply where testator makes a will prior to a forthcoming marriage or civil
partnership if appears that testator was expecting to marry or form a civil
partnership with a particular person and does not intend will to be revoked (s 18(3)).
If will conditional on marriage/civil partnership taking place, it will take effect unless
expressly revoked even if expected marriage/civil partnership does not happen.
If the testator later divorced, Wills Act 1837, s 18A the will remains valid but:
(a) provisions of will appointing former spouse/civil partner as executor or
trustee take effect as if 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/interest in property, devised or bequeathed to former spouse
or civil partner passes as if former spouse or civil partner had died on that date.
By destruction
Wills Act 1837, s 20 - 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’
will destroyed accidentally or by mistake is not revoked.
If its contents can be reconstructed an order may be obtained allowing its admission
to probate as a valid will.
Physical destruction required not symbolic destruction (crossing out wording)
if a vital part (signature) destroyed, may be held to revoke the entire will.
If part destroyed less substantial may revoke only that part which was destroyed.
destruction must be in the testator’s presence and by his direction.
Destruction in another room is ineffective to revoke the will.
If destroyed but not revoked, obtain probate of a copy, draft or reconstruction.
court may apply doctrine of dependent relative revocation to save a will, on basis
that testator’s intention to revoke by destruction was conditional upon future event.
Alterations
If will altered, basic rule, alterations invalid unless proved that they were made before the
will was executed, or unless the alterations are executed like a will.
If will includes invalid alterations, original wording will stand if original words are ‘apparent’.
If original words obliterated in such a way that they can no longer be read (apparent), those
words have effectively been revoked by destruction – rest of will valid.
Court may decide that testator’s intention to revoke obliterated words was conditional only.
This inference likely when testator attempted to replace obliterated words with substitution.
Implied condition - testator intended to revoke original words only if substitution effective.
HOW A WILL TAKES EFFECT
The people dealing with the estate will be called executors, if they were appointed by the will,
and administrators, if there was no appointment in the will. Both are ‘personal representatives’.
What property passes under the gifts in the will?
Basic rule- Wills Act 1837, s 24, which provides:
… 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.
This means dispose of all property the testator owned when he died, whether or not the
testator owned it at the time the will was made.
Ademption
A specific legacy, will fail if the testator no longer owns that property at death.
The gift is said to be ‘adeemed’.
If asset retained but changed its nature since the will was made - only if change in
substance will the gift be adeemed.
Presume testator meant only to dispose of named particular asset owned at date of will.
If property capable of increase/decrease, testator will normally be taken to have made a
gift of any items satisfying the description at death.
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