Notes from BPP's WAE module covering:
- Distribution of a persons' property on death
- Inheritance tax
- Administration of the estate
/!/ These notes have been restructured to optimise exam performance and thus are in table formats /!/
/!/ These notes were written during the academi...
Wills and Administration of Estates (WAE)
Section A: Distribution of a person’s property on death
Distribution of a person’s property on death depends on:
1. Whether the deceased (D) died testate (=with a will) or intestate (=without a will)
Testate Intestate Partially testate
What does it mean? = s/he has made a valid will = s/he hasn’t made a valid will = s/he has made a valid will but only disposing of
part of the succession estate
What determines who Will determines who inherits the succession estate. Administration of Estates Act 1925 (EAE), Will determines who inherits the succession
inherits the succession amended by the Inheritance and Trustees’ estate but any property that is not disposed
estate? Powers Act 2014 (ITPA) determine who therein passes under the Intestacy Rules so you
inherits the succession estate. could technically inherit under the will but also
under the intestacy rules.
Additional remarks Validity of `Testator is capable AND Issue = children/ linear
will descendants whether born to
married parents, unmarried
!/!: Capacity is presumed if the will is rational. However,
parents, or adopted.
capacity must be proven if there is doubt as to capacity.
Civil partner = couples, whether
‘Capable’ means that the testator understands the nature of
same sex or not, who have
his act, the extent of his property and moral claims (i.e., if a
entered a formal civil
person excludes a child, they may be able to make a claim
partnership under the CPA 2004
under the Inheritance (Provision for Family and Dependants)
Act 1975)
Marriage – including same sex
marriage unless the document
Must be capable when the will is executed unless the testator
says otherwise and is made on
had capacity when giving instructions and the will is prepared
or after 13 March 2014
following those instructions and the testator understands he is
o If document before
executing a will for which he gave instructions
13 March 2014 –
refers to opposite
Testator has the requisite intention to make a will sex marriage only
(general), and the specific will they are signing (specific)
AND
Where a category of relative is
entitled, the amount available is
!/!: intention is presumed if the testator is capable. However, divided equally
capacity can be rebutted if lack of intention is suggested.
o e.g., if 3 issue are
entitled to ½ residue
on statutory trusts,
s.9 Wills Act 1837 are fulfilled: Will is this will be 1/3 each
1. In writing (Statutory trusts): entitled
beneficiary has a
o Contingent interest =
2. Signed by the testator OR by some other person in
if beneficiary
the testator’s presence and under his direction
survives intestate
but is not yet 18 or
Testator by his signature intended to give effect to the will not yet married
If signature at the start / middle of the will = doubt as to the o Vested interest = if
intention? beneficiary survives
the intestate and is
3. Signed by 2 or more witnesses at the time the either at least 18 or
testator signs or acknowledges signature who attest married
and sign the will in the presence of the testator (but
not necessarily other witness) !/! If the beneficiary
dies before the
Witnesses = should be adult and capable (physically and intestate, that
mentally); traceable (capable of giving evidence) so full names intestate ‘s children
and addresses. can inherit by virtue
of substitution*:
If 18 or married =
If the witness is a beneficiary then the beneficiary cannot vested interest
inherit!! s. 15 Wills Act.
If not 18 and not
N.B: married =
contingent
There may be an attestation clause at the end of the interest
will which states that these formalities have been
complied with (and any special circumstances in which o If never
it was signed). reaches
o If there is one and it is correctly drafted, there 18 or
is a presumption that s.9 was followed, and never
the will was correctly executed = presumption marries,
of due execution share
goes to
o If there is not one or it is incorrectly drafted, other
issue
proof that the correct procedure is required
equally
before the will is admitted to probate =
affidavits of due execution
*doesn’t apply to
There may be a date in the will but this is not Wills.
mandatory.
If the family home was owned
Terms of an unexecuted document can be incorporated solely by the deceased or as TiC
into a will even if they do not comply with s. 9 WA with the surviving spouse, then
provided that the document: the surviving spouse has the
o Is clearly identified in the will right to have the family home
appropriated to him/her.
o Right to be exercised
o Already exists at the date of the will
within 12 months of
the grant of
o And is referred to in the will as already in representation
existence at the time of execution
Alterations Question 1 = is the alteration valid? o If the spouse’s right
to a valid Alteration before the will is executed = valid so long under the estate is <
will as made with the knowledge and approval of the than the value of the
testator house = spouse must
pay this difference to
the PR
Alteration to a will before or after the will is
executed and that alteration is attested following s.
9 WA = valid !/! if the family home was held
as JT, this would not be
necessary as it would pass to
Alteration to a will and that alteration is not the surviving spouse (and thus
attested = presumption that it was made after the JT) under survivorship.
will was executed and so the alteration is invalid
o Presumption can be rebutted by evidence from
the will itself (intrinsic evidence) or external
evidence (affidavit from the person who drafted
the will or one of those witnesses - extrinsic)
o Bottom line = attest it!
o Alteration can be salvaged by executing a codicil
(provided the alteration was made before the
codicil was executed!)
Question 2 = if invalid, what effect does it have on the
provision in the will?
o *Original wording is apparent by reading
or holding up to light = original wording
admitted to probate
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