Wills and Administration of Estates LPC Lecture Notes
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Module
Wills and Administration of Estates
Institution
Staffordshire University
These are an in depth look at Wills and Administration of Estates. This includes statute law and a lot of worked examples to apply the law to real life scenarios. They are brief and simple to follow.
Module includes –
What is in the estate
Capacity to make a will
Formalities of making a valid will
Amending and revoking a will
Intestacy
Post death administration
Wills and Admin Glossary
Testator/testatrix The person who writes the will.
Beneficiary The person who is getting the thing under the will.
Bequest Term for ‘gift’ left in will
Legacy Term for ‘gift’ left in will
Residue What’s left over e.g. A will may say ‘I’m leaving £5,000 to my
brother and the residue to my wife’
Executor/administrator The person who administers the will. If the deceased leaves a
will then the person who administers the will is called the
executor. If the deceased does not leave a will then the person
looking after the estate is called the administrator.
Revoke If somebody has a will but no longer wants that will for some
reason, they can revoke/cancel it.
Codicil An addition or supplement that explains, modifies or revokes a
will or part of one
Wills and Admin Professional Ethics
On exam paper there’s almost always a question that will relate to professional conduct.
1. SRA Code of Conduct Paragraph 6.3 – duty of confidentiality
You keep the affairs of current and former clients confidential unless disclosure is required
or permitted by law (unlikely) or the client consents.
Example
Adam rings your office. He tells you that his mother Barbara has an appointment to make
her will next Tuesday and needs a lift off him and he wants to check the appointment time.
Can you tell Adam the time of the appointment? No, this is confidential information.
Confidentiality doesn’t just include what is discussed at the meeting, it includes the fact that
someone is actually having a meeting.
2. Conflict of interest
Example
,Wills and Administration of Estates
Crispin’s will leaves half his estate to a wildlife charity and half to his friend Doreen. Crispin’s
son Edwin is claiming the will is not valid. Your firm prepared Crispin’s will. Can you also act
for Edwin?
No, you are going to be trying to argue that this will is a valid will so you can’t also act on the
other side of that for Edwin in trying to say that the will is invalid. You can’t represent both
sides of the issue as your job is to advance the client’s interests and that doesn’t work when
you represent both sides.
3. Paragraph 6.2 SRA Code of Conduct
Can a firm act for both an executor and a beneficiary?
Yes. A firm can act for both an executor and a beneficiary if there’s no conflict –
Substantially common interest
Competing for the same objective
Further safeguards in 6.2
More examples of professional ethics
Q – ‘Your firm is preparing a will for Faisel. Faisel contacts your firm and says he would like
to make a gift to you as his solicitor. Can you accept?’
A – No. Almost like the conflict of interest issue. If you receive a gift on the side, it may seem
as though you’re not acting in his interest but actually acting in your own interest by
including a gift for yourself.
Q – ‘Gaynor is writing a new will. Her previous will left everything to be divided equally
between her nephews Henry and Ian. Her new will leaves everything to Ian. Ian brings her to
the appointment. Ian wants to be in the appointment with her as he says she gets nervous
and may need his support.
A – Red flags should be ringing. This could perhaps be duress? Coincidence that Ian gets
everything, has to sit in there whilst she gets the advice (will Gaynor be able to say
everything she wants with Ian there?). It’s common for a husband and wife to attend
together as their wills often say the same thing e.g. 50% to our son, 50% to our daughter
and therefore you can’t have a blanket rule that there cannot be somebody else in the
room. However, generally speaking, if someone is asking for advice on their will, you don’t
want somebody else in the room. Especially someone who is trying to benefit.
Professional Negligence
White v Jones A solicitor was supposed to be preparing a will. This will would’ve
[1995] UKHL 5 changed the previous will. Some people who weren’t entitled in the
previous will were now going to be entitled. Through negligence,
solicitor didn’t make the changes in time and so when the deceased
died, their property went under the previous will and people were
excluded whom the deceased actually wanted to include.
The people who would’ve been beneficiaries, had the will have been
, Wills and Administration of Estates
changed, were able to bring a claim. They said your professional
negligence has cost us, we should’ve inherited and now we don’t
because you didn’t change the will in time.
Solicitor was liable. Classed as professional negligence.
What Property Can be Included in a Person’s Estate?
Estate is what is left in will or intestacy
Some property passes outside will or intestacy (will never be part of the will or
intestacy)
Part of the estate Not part of the estate
Property owned absolutely by the Property owned as joint tenants –
testator property passes to the surviving co-owner
under survivorship
Property where the testator is a tenant in Nominated property e.g. pension
common
Life interest
Donatio mortis causa (deathbed gift) –
this is a gift that takes effect on death
without the usual formalities of making a
will
Gift reservation of benefit
Example of joint tenants/tenants in common –
Jack and Kirsty own 14, Elm Parade as joint tenants.
Q – will it be included in Jack’s estate when he dies?
A – No. this will automatically go to Kirsty under survivorship rules.
Q – what about inheritance tax?
A–
Jack and Kirsty own 14, Elm Parade as tenants in common.
Q – will it be included in Jack’s estate when he dies?
A – Yes. Property where the testator owns with somebody else as tenants in common
forms part of the estate. He can leave his distinct share to Kirsty or to somebody else.
Q – what about inheritance tax?
A–
Example of deathbed gift –
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