THE UNIVERSITY OF LAW
WILLS &
ADMINISTRATION
NOTEBOOK
LUKE ROBINSON
, CONDUCT ISSUES
Conduct issue here as Principles 2 & 4 require a solicitor to act with integrity and in the
ASKED TO MAKE A WILL IN best interests of the client
WHICH YOU OR A FAMILY IB1.9 states that the solicitor should refuse to act where the client proposes to make a
MEMBER ARE A gift of a significant value to either the solicitor themselves or a family member
BENEFICIARY Unless they advise the client to take independent legal advice
If client decides not to obtain independent advice, still cannot act
Whether something is significant or not will depend on the size of the person’s estate
WILL MADE WITH NO Solicitors negligent
SUBSTITUTIONAL GIFT Should explain tenants in common and joint tenancy standing
Solicitors can be sued
WILL DRAFTED WITH NO Standard practice when drafting a gift to ask whether there was a mortgage and what
PROVISION AS TO HOW the client’s wishes were in relation to that mortgage
MORTGAGE OF A GIFT IS Solicitors can be sued
DISCHARGED
IMPORTANT TERMINOLOGY
Not specifically devised in the will
RESIDUARY Beneficiary that is entitled to residuary estate that is not specifically devised or that is
BENEFICIARIES specific and fails
Some form of right, usually under a trust, which lasts only for the lifetime of the person
LIFE INTEREST benefitting from it (life tenant)
Gets income but not capital
Capital passes to remainder (who prior to this has a reversionary interest) when life
interest dies
CAVEATS Prevent the issue of a grant of representation (where beneficiary doubts mental capacity or
validity of will); r44 Non-contentious Probate Rules 1987
Where executor can’t renounce due to intermeddling but shows no signs of applying for
grant of probate, citation will force them to apply
CITATIONS If no good reason, citor can get court order allowing executor to be passed over and letters
of administration with will annexed to person entitled under r20
Citation is standard way of clearing off person with prior right to any type of grant who has
no applied
Alternative: may apply to court to pass over any person unwilling to take a grant
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, REQUIREMENTS OF VALID WILL
Testator is 18 or over
Requisite mental capacity of “soundness of mind, memory and understanding”. Banks v Goodfellow:
Understand the nature of their act and its broad effects
The extent of their property
CAPACITY Moral claims they ought to consider (even if rejecting them)
Mental Capacity Act 2005 does not apply to wills (according to current case law)
Presumption that capacity exists
Burden of proof rests with those alleging lack of capacity
Must have general (to make will) and specific (contents of will) intention as to the will
Presumption that testator has intention unless:
Illiterate, blind or not signing in person (here, some sort of signed statement/other
evidence is required)
INTENTION Suspicious circumstances (such as prepared by beneficiary)
O2.4: Where client gives to solicitor/solicitor’s partner or member of
firm/families, the gift is significant and solicitor should advise client to take
independent advice and refuse to act if they don’t seek it
Burden of proof rests with those alleging lack of intention to prove force/undue
influence/fraud/mistake
s9 Wills Act 1837: the will must be:
Signed writing by testator/other person in their presence under their direction
Testator signed to give effect to the will (even if wrong will Marley v Rawlings)
At least 2 witnesses are present and sign. They must:
a) Understand the significance/extent; and
b) s15 Wills Act 1837 if a beneficiary or their spouse/civil partner witnesses the will, the
will remains valid but the gift to that beneficiary (and beneficiary’s spouse) will fail
FORMALITIES
Witnesses
Witnesses need not be there at the same time
Will made on military service or by a seaman at sea is valid even if it is only oral; Ayling v Summers
Attestation Clause
If attestation clause is included, presumption of due execution
If attestation clause not included, an affidavit of witness or affidavit of handwriting evidence will be
required
REVOCATION & ALTERATION
i) By a later valid will or codicil (both impliedly or expressly)
ii) By marriage or civil partnership:
s18; automatic
REVOCATION Unless will was made when testator was expecting to marry
s18A: post-divorce will is still valid, duty if spouse was executor, they are treated to
have died on divorce date so gift also fails
iii) Full physical destruction with intention to revoke (s20)
Any alteration must be properly executed like the original (initials of testator and witnesses in
margin would suffice)
ALTERATION Invalid alteration means original wording stands
Original gift can take effect provided the wording is still apparent
Alteration republishes the will as if it was made on that date (this is important for identifying
specific property such as “my car/house/watch”)
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, PROPERTY PASSING IRRESPECTIVE OF WILL
If held JT in equity, property passes by survivorship to the other JT regardless of what the
JOINT PROPERTY will says
This is unlike tenants in common
Can be property or bank accounts
Some statute allows an individual to nominate what happens to certain property/funds
NOMINATED (trustee savings banks) after death
PROPERTY Maximum deposit is £5000
Few statutes allow new nominations to be made (those in existence are already valid)
Normally on death, life assurance policies will go to PRs for distribution in accordance with
the will/intestacy rules;
Life assurance policies can be expressed as for the benefit of a specified individual (so
INSURANCE POLICIES deceased doesn’t own property beneficially upon death):
s11 Married Woman’s Property Act 1882: can create a trust in favour of your spouse
and/or children
Express writing of a trust for named beneficiaries
If deceased was still employed, trustees of the scheme in question have a discretion as to
who they pay
PENSION BENEFITS Normally calculated with reference to the deceased’s salary
Paid independently of the will by the pension fund trustees to the dependents at the
trustee’s discretion under a ‘letter of wishes’ (which is not legally binding)
TRUST PROPERTY This will pass according to the terms of the trust, not the will
However, an interest in remainder under a trust can pass according to a will
FAILURE OF GIFTS
If a gift fails, it will fall into the residue and the residuary beneficiary will be entitled to it
If there is no residuary beneficiary, use intestacy rules
Gift will fail if the property isn’t owned by the testator at death/there is a change in the
substance of the gift
Gifts changed in nature (shares in X, but company taken over by Y) will stand (must be
ADEMPTION change in substance for gift to adeem)
Property that has been replaced will fail, but check circumstances (“my car/watch” but it is
a different one to the one with which the will was made)
Property can increase/decrease (“my jewellery”); gift will include all items matching that
description (no ademption)
Where the beneficiary predeceased the testator/fails to satisfy contingent clause of surviving
by X years, the gift will fail and it falls into residue of the estate (even if issues)
LAPSE Unless there is a ‘substitutional gift’ (whether surviving beneficiaries take lapsed gift)
If order of death cannot be proved, elder of two is deemed to have died first (s184 LPA 1925)
Class gift (to all kids in equal shares) won’t lapse until they all predecease the testator
s15 Wills Act
BENEFICIARY If the witness to the will or their spouse is a beneficiary under the will, the will remains valid
WITNESSES WILL but the gift to that person will fail (see formalities)
Post-divorce will is still valid, but if the spouse was executor, they are treated to have died
DIVORCE on divorce date so gift also fails
If the beneficiary refuses the gift, it will fall into residue
DISCLAIMER Cannot disclaim the gift if they have already had some benefit from it (such as the income)
Can’t inherit from someone you have been convicted of killing
FORFEITURE If manslaughter, apply within 3 months for relief from this
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, INTESTACY
Rules are outlined in Administration of Estates Act 1925 which creates a trust over the property
GENERAL capable of being disposed of by a will (s33) when a person dies without leaving a will/invalid will
(“died intestate”) or their will fails to deal with all the assets (“partial intestacy”)
If this occurs, the PRs are to pay out in the following order:
1) Reasonable funeral expenses and administration expenses and IHT
Money may need to be raised for this. Factors: do not sell specific legacies / think of
beneficiaries’ wishes / consider tax impact or selling asset (CGT) and availability of exemptions
2) Debts and liabilities
3) [Any valid legacies if there is a will]
4) Distribute the residuary estate according to the order in Part IV AEA:
a) Spouse/civil partner
Person to whom deceased was married to at the time of death
As from 01/01/96, a spouse must survive the intestate for 28 days or they are treated as not
ORDER OF having outlived the deceased
PAYMENTS b) Issue on statutory trusts
Children, grandchildren, great-grandchildren, adopted children, illegitimate children
Not step-children (unless adopted), but note I(PFD)A 1975
c) Parents absolutely, equally
d) Siblings of the whole blood (same parents) on statutory basis
e) Siblings of the half-blood on statutory trusts
f) Grandparents, equally
g) Uncles and aunts of the whole blood on statutory trusts
h) Uncles and aunts of the half-blood on statutory trusts
i) The Crown (not the doctrine of bona vacantia that allows Crown to provide for estate dependants)
s47 determines the terms on which the beneficiaries (above) take under intestacy
a) Interest vests for those who
i. Outlive the deceased
ii. Reach the age of 18 (or earlier if they are married)
b) Until a) is satisfied, they will hold a contingent interest only
STATUTORY c) If they die before their interest vests, they’re treated as if they never existed and does not pass to
TRUSTS their issue
d) If original beneficiary whose interest would have been vested dies before the intestate, then their
issue(s) will take equal shares in the share in the parent would have taken (vested/contingent (held by
deceased’s PR))
e) If an issue dies before their interest vests, their share will pass to the other issue
SPOUSE & ISSUE SURVIVE SPOUSE SURVIVES, NO ISSUE, IMMEDIATE
FAMILY
All personal chattels absolutely to spouse, Personal chattels absolutely to spouse
irrespective of living arrangements (s55(1))
(household/personal items per s55(1)(x) AEA Statutory legacy of £450,000 plus interest
1925) (tax free) to spouse (death to payment)
Statutory legacy of £250,000 plus interest to Half of residuary estate (leftover)
SCENARIOS spouse (from death until payment) tax-free absolutely to spouse (as capital lump sum)
Remainder is divided into two funds: The remainder is distributed:
a) One for spouse for life (income from investment) a) Parents survive = rest absolutely/equally
with remainder to issue(s) on spouse’s death, b) Parents predecease intestate = rest of
even if under 18 (s47 spouse can take lump sum estate divided between whole-blood
if give written notice to PRs within 12 months, brothers and sisters on statutory trusts. (If
leaving balance on statutory trust) these predecease, then their issues get
b) One half for issue(s) on statutory trust (above) their shares)
SPOUSE ONLY SURVIVES
Receives whole estate absolutely (providing survives deceased for 28 days)
INTESTATE HAS NO SURVIVING SPOUSE
Residuary estate divided between relatives in the highest category (and that category only) (above)
If it forms party of the residuary estate, the spouse can ask for it to be given to them in full/partial
MARITAL satisfaction of their entitlement (s5 Intestates Act 1952)
HOME If it forms more than entitlement, they pay the difference (‘equality money’ in order to be given it
Must give notice in writing within 12 months of the grant
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