PROPERTY DISTRIBUTION INTESTACY:
Testator = person who makes a will. Intestacy rules:
If the deceased made a valid will: they have died testate. Terms of will s.46(2A) AEA Did the deceased have a spouse
determine who inherits the succession estate. who survived them by 28 days?
If the deceased died without a valid will: they have died intestate.
IF YES: Did deceased have an issue? IF NO: Did deceased have issue?
Administration of Estates Act 1925 Intestacy rules apply to inheritance.
YES: YES: Issue receives everything on
If a valid will doesn’t dispose of all possessions: partially intestate: Spouse receives: statutory trusts
* follow the will for distributed property and Personal chattels = all tangible
movable property except: NO:
* follow the intestacy rules for undisposed property. cash, s.46 AEA Whole estate passes as
assets used for business per statutory order, to:
Example: purposes and 1. Parents
Ron’s will: I GIVE: the house I own to my sister Ginny, the balance of my assets held as investment 2. Siblings of whole blood
WestNat account to my nephew Sheamus, my piano to Harry. 3. Siblings of half blood
Ginny, Sheamus and Harry inherit as per the will. Ron’s household Statutory legacy up to £270,000 4. Grandparents
possessions are not disposed of, these will pass as per intestacy rules. 1⁄2 of residue 5. Uncles/Aunts of whole blood
Residue = remaining succession 6. Uncles/Aunts of half blood
estate after deducting chattels (half-blood siblings of a
SUCCESSION ESTATE: and statutory legacy. parent) or
7. Crown (bona vacantia)
Succession estate = all of a person’s assets which pass on to successors Issue receives:
after death. Deceased’s personal representatives (PRs) administer the Other 1⁄2 of the residue on statutory Where a category of relative is
estate. After paying debt and expenses, remaining assets are distributed. trusts entitled eg. siblings, estate is divided
equally between them.
To identify all assets, identify property that is excluded. NO:
If not excluded = part of the succession estate. Spouse receives everything.
Excluded assets: Issue = children and remoter linear descendents – eg. grandchildren and
includes adopted children.
None of the below excluded assets form part of the succession estate.
Reference to marriage/spouse includes any person who has entered
Statutory nominations: into a heterosexual or same sex marriage or civil partnership.
Statutory nominations = nominations of up to £5,000 to transfer money
held in friendly society bank accounts. Beneficiary receives the money. If a clause in a will makes a gift conditional on getting/being married:
If the will was executed before 13 Mar 2014, marriage will refer to
Donatio mortis causa (DMC): marriage of opposite sex couples only.
DMC = gift made during donor’s lifetime in contemplation of and For a will executed on or after 13 Mar 2014, marriage will include
conditional upon death. Donor recovers the asset if he changes his mind. marriage of same sex couples.
Assets held in trust/settlement: Statutory trusts:
Original trust deed controls the destination of the property.
s.47 AEA Beneficiaries other than spouses or parents/grandparents
Life interest trusts: types of beneficiaries: inherit on statutory trusts.
- Life tenant with a life interest. – eg. income during lifetime
- Remainderman with a remainder/reversionary interest – eg. The terms of statutory trusts are:
receive capital when life tenant dies. (a) Beneficiaries must survive the intestate and reach 18 or marry
earlier to inherit. Until then, their interest is contingent but will
Pensions and policies written in trust: receive both maintenance and accumulation of capital.
If a policy is written in trust the policy proceeds don’t form part of the If a beneficiary satisfies the requirement, they inherit absolutely
succession estate but the money is paid to the beneficiaries directly. and their interest is vested.
(b) If they die before their interest vests, their share will pass to
Life insurance policies: their issue once that issue reaches 18 or marries earlier.
Provider pays a lump sum to the deceased’s estate on death.
These policies are typically written in trust. Surviving spouse’s right to the family home:
Discretionary Pension Schemes / Lump sum pension benefits: Intestate’s surviving spouse has right to possession of the family home.
If deceased nominated third party to receive the money or the
policy written in trust, the beneficiary is paid and does not form Sched 2 Intestate Estates Act 1952 This right must be exercised within
part of the succession estate. 12 months of the grant of representation.
But note: if lump sum is payable to PRs, then money forms part
of the succession estate. If an intestate has a surviving spouse:
Property held as beneficial joint tenants: Where the family home was owned solely by deceased or held
Survivorship = if deceased and other(s) held property as beneficial joint jointly as tenants in common, a surviving spouse can require the
tenants, property passes to remaining joint tenant(s). But note: if PRs to appropriate the family home for them to ensure they
property was held on beneficial tenancy in common, deceased’s share remain in occupation. If spouse’s entitlement is worth less than
will go to his succession estate. property’s value, spouse must pay PRs the difference.
This is not possible if deceased owned the family home as
Joint bank accounts: Unless otherwise stated, deemed to be owned as beneficial joint tenants with another, as property will pass via
joint tenants (survivorship) and is outside the succession estate. survivorship.
Exercise – Succession estate: Intestacy exercise:
Tom Shelbie dies intestate. Tommy held the below: Arthur dies intestate. Arthur was married to Brigitte and had three
1. House: owned by Tommy and Grace as beneficial joint tenants. children, Carl, Dolly and Ed. Ed is 17 and married, while Carl has died
2. Assets owned by Tommy and Grace, beneficial joint tenants. last year but he had two young children. Value of estate: £270,000 +
3. Gallery owned by Tom and Polly, tenants in common, 50% share. personal chattels. Who will inherit his estate?
4. Discretionary Pension scheme nominated in favour of Grace.
5. Life assurance payable to Tommy’s estate. Provided Brigitte survived Arthur by 28 days, she would be entitled to:
• Personal chattels
Tommy’s succession estate? • A statutory legacy of £270,000
Items 1 and 2 – held on joint tenancy and pass directly to Grace as the • One half of the residue
surviving joint tenant under the law of survivorship. Excluded from the
succession estate. Arthur’s 3 children, would be entitled to the other 1/2 of the residue on
Item 4 – discretionary pension lump sum, is payable directly to wife statutory trusts in equal shares i.e. 1/3 each of the half available. Their
Grace as it was nominated for her and does not form part of the interests will be vested as they are all over 18 or married.
succession estate.
Items 3 and 5 – included in the succession estate. Gallery is included as Carl has pre-deceased Arthur so he cannot inherit. Under the rules on
Tommy had a 50% share. statutory trusts, Carl’s own children, Flora and Gerry, are entitled to his
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, 1/3 share provided they reach the age of 18 or marry earlier. Flora and OPTIONAL – Date:
Gerry will each have a contingent interest in half of Carl’s share. Will is not invalid without a date but it enables Probate Registry to
ascertain the last will of the testator.
Note that if Arthur’s estate, excluding chattels, had been worth less than
the statutory legacy of £270,000, the whole estate would pass to
Brigitte. INCORPORATION OF DOCUMENTS INTO A WILL:
Terms of an unexecuted document can be incorporated into a will.
VALIDITY OF A WILL: Then that doc becomes part of the will even though such document does
not comply with s.9 WA.
Criteria for a valid will: *If not met, invalid*
Testator must be at least 18 Valid incorporation if the document:
Must have capacity i) is clearly identified in the will
Must have the requisite intention, and ii) exists at the date of the will, and
s.9 Wills Act criteria must be complied with. iii) is referred to in the will as in existence at execution.
Capacity: CODICILS:
Banks v Goodfellow Testator must understand that:
He is making a will Codicil = testamentary instrument supplementing an existing will. A
The extent of his property, and codicil republishes the will. This means the will is treated as if it had been
Moral claims that he ought to consider (but need not benefit any executed on the date on which the later codicil was executed. – eg. a
particular person). validly executed will, dated 3 Sep 2018 and a codicil to it was signed on
1 Aug 2022. The effective date for the will would be 1 Aug 2022.
Parker v Felgate Capacity must exist when the will is executed. Except:
Where testator had capacity when giving instructions for the will Codicils must comply with the same requirements as a will under s.9 WA.
Will is prepared in accordance with those instructions, and
At the time of executing the will, the testator understands he is When testator wants several amendments to a will, or where there
executing a will for which he gave instructions. would be more than one codicil, advise the client to make a new will.
Where the will is rational, capacity is presumed. However, if doubt is Example:
raised as to capacity, then onus is on the PRs to prove capacity. Codicil: ‘I GIVE my house and my books to my friend Andrea’
Where a person lacks capacity, Court of Protection may make a Under Samar’s will:
statutory will on their behalf. 1. Bobby would have received £100 – the codicil does not affect
Bobby’s gift.
Intention: 2. Clara would have inherited any piano Samar owned – there is no
A testator must have: effect on the gift to Clara.
General intention to make a will 3. Ted would have inherited all the rest of the personal chattels
AND that are “not otherwise specifically bequeathed by the will or
Specific intention to make the particular kind of will they are any codicil hereto” – Under the will Ted would have received the
signing with approval of the contents of the will. books (personal chattel). There is now a codicil which specifically
gives away the books and this takes priority.
There is a presumption that intention exists but this can be rebutted if
circumstances suggest otherwise – eg. if testator is blind/cannot read.
ALTERATIONS TO A WILL:
Formalities:
A will must comply with s.9 WA, otherwise the will is invalid. Valid alterations:
Esterhuizen Solicitors are likely negligent if execution is incorrect. Completion of a blank space – valid.
Alteration made before the will is executed – valid.
s.9 WA 1837 The will must be: Attested alteration before or after execution, signed by testator
1. In writing and two witnesses, initials next to alteration – valid.
2. Signed by testator, or by another in testator’s presence + by his
direction – eg. where testator is physically unable to sign. I GIVE a legacy of £2,000 to my grandson Andrew.
3. Testator intended to give effect to the will. NA TJ FP
4. Testator’s signature must be made or acknowledged by testator
in the presence of min. 2 witnesses Here: valid alteration, initialled and its effect is that grandson
AND Andrew will not receive anything.
5. Each witness attests and signs using full name and address (or
acknowledges signature) in the presence of the testator. Invalid alterations:
Signatures may be placed anywhere on the will. An unattested alteration is invalid.
Witness rules: I GIVE a legacy of £2,000 to my grandson Andrew.
Witnesses must be: over 18, capable of attesting the testator’s
signature, physically and mentally present and able to see testator sign Strike through is unattested so invalid. However, as original gift
or acknowledge his signature. cannot be deciphered, Andrew will inherit nothing.
Covid rules (valid between 31 Jan 2020 and 31 Jan 2024): witnesses may I GIVE a legacy of £2,005 to my grandson Andrew.
witness wills remotely without invalidating the will.
Strike through is unattested so invalid but here part of the
Signed by beneficiaries or their spouses: original gift (£5) is still visible. Andrew will receive this.
s.15 WA 1837 If beneficiary or their spouse signs or acts as a witness,
beneficiary will not be able to inherit under the will. I GIVE a legacy of £2,005 to my grandson Andrew.
£100
Signature/witnessing by beneficiaries or their spouses is still valid:
If there are min. 2 witnesses who are not beneficiaries or their Strike through and £100 is unattested so invalid. If there is
spouses or extrinsic evidence that can identify the original gift (e.g. copy of
If will is subsequently confirmed by a codicil. the will without alteration), Andrew would receive the gift. If no
evidence, then Andrew receives nothing.
OPTIONAL – Attestation clause:
Attestation clause = clause stating that will complies with s.9 WA An unattested alteration can be given effect to if:
formalities. It is proof that the will was properly executed. Although the There is evidence that alteration is made on or prior to
will is valid without it, affidavits of due execution (sworn by witnesses) execution. Evidence may be: the will itself or affidavit from
will be needed before the will is admitted to probate. whoever drafted the will or a witness, or
will is later re-executed or confirmed by a later codicil.
If the will is executed in special circumstances, attestation clause should
explain this in detail. – eg. the testator was unable physically to sign If the original wording is apparent then the will with the original
wording is admitted to probate.
Apparent = original wording can be deciphered by natural means,
reading or holding it up to the light but not infrared photography.
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