INFO
L.O.1: GENERAL RULES
Property passes
outside a person’s Whether the intestacy rules or will are followed when distributing deceased assets to
beneficiaries depends on whether died testate or intestate
succession estate and
Assets capable of passing under a will or by intestacy = DECEASED’S SUCCESSION ESTATE/
not by will/intestacy DISTRIBUTION ESTATE
Testator = Person who makes the will
If a deceased made a valid will he/she has died TESTATE
If the deceased died WITHOUT making a valid will he/she has died INTESTATE
If the deceased made a valid will, but the terms of the will DO NOT dispose of ALL the
succession estate; PARTIALLY INTESTATE
The will is followed but any property that remains undisposed of passes according to
intestacy rules
IDENTIFYING SUCCESSION ESTATE
Person’s succession comprises of ALL of their assets which pass by will/intestacy rules
Passes in hands of the deceased personal rep (PR)
Legally responsible for administering estate
Out of succession estate; pay deceased’s debts, funeral costs etc.
Remaining assets distributed in order of priority under intestacy rules/terms of will
If an asset is NOT specifically EXCLUDED; be within succession estate
SIX TYPES OF ASSETS EXCLUDED FROM SUCCESSION ESTATE:
1. Property held as JTs
a. If deceased held property as beneficial JT; automatically pass to remaining JT by
virtue of law of survivorship
b. If deceased held property as beneficial TIC; deceased’s share will form part of
succession estate
2. Insurance policies written in trust
a. Value of lump sum agreed when policy holder takes out life insurance
b. Common policy to be written in trust (where 3 rd party nominated to inherit lump
sum)
c. If policy WRITTEN IN TRUST; NOT part of succession’s estate + paid by insurance Co
to specified beneficiaries upon presentation of death certificate + deceased’s rules
3. Pension benefits
a. Some pension schemes OBLIGE pension fund trustees pay out lump sum after death
b. If amount payable to PRs; form part of succession estate
c. If deceased nominated 3rd party; nomination binding + sent directly to the
beneficiary and NOT part of succession estate
d. Some pension schemes may have DISCRETION to make lump sum (‘Expression of
Wish’ form by deceased on who should receive money)
e. Lump sum to 3rd party NOT form succession estate + directly to 3 rd party
4. Statutory nominations
a. Nominated beneficiary receives money + will/intestacy rules do NOT apply
b. Rare + limited to £5k
5. Donatio mortis causa (DMC)
a. DMC = gifts during donor’s lifetime in contemplation and after death of donor
b. Donor may recover asset if changes mind before death
c. Subject matter of DMC; NOT part of S.E
6. Trusts/settlements
, a. Assets held in trust/settlement where deceased benefitted; NOT part of deceased’s
S.E.
b. Life interest trust normally passes to remainder beneficiary as per original trust deed
L.O.2: ENTITLEMENT TO THE ESTATE
Property in an
intestate/ partially Main categories of the beneficiary are the intestate’s surviving SPOUSE/CIVIL PARTNER and
ISSUE
intestate distributed
Distribution where intestate dies leaving spouse/CP and/or issue
on death ISSUE = children/remote linear descendants
Includes legitimate, illegitimate (born but unmarried), legitimated (born unmarried,
but later married) and adopted children
A spouse/CP to inherit must survive the intestate by at least 28 days
Distribution where intestate dies WITHOUT leaving spouse/CP or issue’
If intestate dies and NOT SURVIVED by spouse/CP or issue; STATUTORY ORDER of
entitlement follows:
1. to parents, but if none;
2. to siblings of whole blood (share both parents with intestate) on the statutory trusts,
but if none;
3. to siblings of half-blood (share one parent with intestate) on the statutory trusts, but if
none;
4. to grandparents, but if none;
5. to uncles and aunts of whole blood (whole blood siblings of a parent of the intestate) on
the statutory trusts, but if none;
6. to uncles and aunts of half-blood (half-blood siblings of a parent of the intestate) on the
statutory trusts, but if none;
7. to the crown as bona vacantia
STATUTORY TRUSTS
Beneficiaries other that spouses/CP or parent, grandparents take their inheritance on the
statutory trusts
The share of estate is held to any child/children of intestate (equal shares if >1) who
SURVIVE intestate + reach 18 or MARRY EARLIER – until satisfied; beneficiary has
CONTINGENT INTEREST
18 or older (or married) when testator dies; INHERIT ABSOLUTELY + IMMEDIATELY;
beneficiary has VESTED INTEREST
If entitled beneficiary dies BEFORE intestate; beneficiary’s children inherit provided
over 18 or married; beneficiary is the SUBSTITUTION LIMB of the statutory trusts
SURVIVING SPOUSE’S RIGHT TO APPROPRIATE FAMILY HOME
Intestate’s surviving spouse has right to have family home appropriated to them
Must be within 12 MONTHS OF GRANT represented
If surviving spouse exercises right; the PRs will use powers under s41 AEA to effect
appropriation
Beneficiary CANNOT FORCE PR to transfer specific item from estate to them
Where family home (or share of it) forms part of succession estate; surviving spouse CAN
REQUIRE PRs to appropriate as part of entitlement
If spouse entitlement < value of property; spouse needs to PAY PRs THE DIFFERENCE using
own funds
Spouse CANNOT receive home as an ADDITIONAL GIFT
L.O.3: WILLS: OVERVIEW
Content and Format
of a Simple Standard The will drafted should reflect your client’s instructions
Solicitors may only act for clients on instructions from the client, or from someone properly
Will
authorised to provide instructions on their behalf
Solicitor must ensure that each person confirms that instructions given reflect their own true
wishes and if in any doubt; arrange to see each testator individually
, Structure of Will [see example structure attached]
Will traditionally drafted WITHOUT punctuation + follow standard pattern with NUMBERED
clauses
Commonly see words which explain purpose of clause capitalised (e.g. I GIVE; I APPOINT)
L.O.4: VALIDITY OF A WILL
Requirements for
valid will + codicil Testator must be over 18
To make a will VALID:
Must have CAPACITY to make will
Must have the requisite INTENTION
Requirements of s9 Wills Act 1837 must be complied with
If ANY are not met; will is invalid
CAPACITY:
Testamentary capacity defined in Banks v Goodfellow: ‘soundness of mind, memory and
understanding”
Must be able to understand:
Nature of the act
Extent of his property
Moral claims they ought to consider
Must exist AT THE TIME the will executed
EXCEPTION – Parker v Felgate (where testator lacks capacity at date of execution is sufficient
if:
Capacity when giving instructions
Will prepared in accordance with instructions
At time of execution; understand they are executing will for which they gave
instructions
Mental Capacity Act 2005
Statutory test for capacity
Ties in with common law; common law position is still good law as in Parker v Felgate
Where will appears rational testamentary capacity is PRESUMED
If evidence raises doubt; ONUS OF PROOF is on those seeking the validity of the will
INTENTION:
GENERAL intention to make a will + SPECIFIC intention to make a particular will they are
signing
Must have knowledge + approval of the contents
PRESUMPTION that the necessary intention exists where a testator with testamentary
capacity executes will
Can be rebutted where lack of intention from circumstances
FORMALITIES:
Must comply with s9 WA; if any req’s not complied with then invalid
Signed by a testator:
‘In writing and signed by testator (or someone in presence + by their direction)’ and ‘appears
that the testator by signature intended to give effect to will’
Signature appears at end; indicates had necessary intention
Signatures at the beginning/middle can cause difficulties
Signed by witnesses:
Testator signature is ‘made or acknowledged by the testator in presence of TWO OR MORE
Present at time that testator signs or acknowledges signature
Each witness attests and signs will in presence of the testator
No rules as to WHO should act as a witness; adult capable of attesting testator’s signature
(physically + mentally present e.g. not drunk)
Care should be taken to choose someone who is traceable + able to provide evidence (full
, names + addresses of witnesses should be obtained)
If BENEFICIARY OF WILL acts as a witness, the beneficiary will NOT BE ABLE TO INHERIT
under will (s15 WA)
At least two other witnesses OR if will is confirmed by a codicil, attestation of the will by
beneficiary or spouse can be disregarded as will executed without their signature
CONCLUDING CLAUSES OF A WILL
ATTESTATION CLAUSE explains the circumstances in which will is executed
Necessary formalities under s9 WA must be complied with
Can be valid without attestation clause given s9 WA is complied with
Correctly drafted attestation clause raises PRESUMPTION that will properly executed
(PRESUMPTION OF DUE EXECUTION)
Without clause; proof such procedure followed would be needed before admitted to
probate e.g. AFFIDAVITS OF DUE EXECUTION
If will executed in special circumstances; attestation clause should be drafted to
explain those special circumstances
DATE; will valid without a date but its inclusion enable Probate Registry to ascertain last will
of testator
Separate clause at start of will OR at end as part of attestation clause
INCORPORATION OF DOCS INTO WILL
Provisions of will in one properly executed doc; if changed needed then done by EITHER
codicil OR revoking will and make new one
Terms of unexecuted doc can be incorporated into will
Incorporate doc becomes part of will + admitted to probate with will (even though doc does
not comply with s9 WA)
For doc to be validly incorporated – must:
Clearly identified in will
Already exist at date of the will
Be referred to in will as ALREADY in existence at the time of execution
INCORPORATION SHOULD BE AVOIDED; danger of failing to satisfy 3 conditions/loss of doc
after death
CODICILS
CODICIL = Formal testamentary instrument which acts as an add-on to an existing will
Read together + distributed in accordance to have combined effect
Codicil must comply with SAME REQ’S as will itself (capacity, intention, s9 WA)
Supplements terms of an existing will; used to add provisions e.g. additional legacy, amend
provisions e.g. change value of pecuniary/legacy, or revoke provision e.g. remove particular
beneficiary’s settlement
CODICIL REPUBLISHES THE WILL; will is treated as if it had been executed on date on which
later codicil executed
When applying rules of construction to will; date of LATEST CODICIL is used
L.O.5: ALTERATION TO A WILL
Revocation and
Alteration of wills + VALID ALTERATIONS (s21 WA)
Alteration to a will BEFORE will is executed is VALID; provided made with knowledge +
codicils
approval of testator
Alteration to will that is ITSELF ATTESTED will be treated as VALID whether made BEFORE OR
AFTER will was executed
PRESUMPTION that UNATTESTED ALTERATIONS made AFTER will has been executed are
INVALID
Timing can be rebutted by evidence from will itself (intrinsic evidence)
External evidence e.g. affidavit (extrinsic evidence)
Practical for testator + witnesses to attest to alteration; avoids rebutting presumption
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