Detailed private client lecture notes. These notes include a variety of worked examples to help understand, detailed descriptions and plenty of case and statute law.
Things to Understand
Capacity to make a will e.g. 18 years or older and mental capacity
Formal requirements – will in writing, signed and witnessed by two people
Amendment (how a will can be changed) and revocation (how a will can be revoked)
Intestacy
The Will
Commencemen Full name and address of testator – to identify who the testator is. If
t known by more than one name put ‘also known as…’
Last will or last will and testament – can use either of these terms
Marriage/civil partnership – marriage/civil partnership revoke a
previously created will. If have a client who wants to make a will and is
getting married in a month’s time, must make it clear that the will is
written in expectation of their marriage/civil partnership
Revocation Purpose = make clear that the will revokes any previous wills. If there is not a
Clause revocation clause, any previous wills are revoked but only if they are
absolutely inconsistent with the current will
Example
In 2005 Adam makes a will leaving his collection of cars to Barry, his collection
of art to Caroline and his residue to Dawn.
In 2015, Adam makes a will (without a revocation clause) leaving his cars to
Edward and his residue to Dawn.
In 2005, he said the cars are going to Barry however he is now saying that the
cars are going to Edward, therefore this bit is directly revoked (cars are going
to go to Barry). Second will doesn’t mention art and therefore this bit can still
stand and go to Caroline. The second will confirms that the residue is still going
to Dawn.
Appointment of How many executors – legally possible to have just 1 executor. however, this
executor can be problematic because what if the executor dies before testator? This
means when testator dies they’ll have a valid will but no executor. Preferable
to have at least 2 executors. Only 4 executors can apply for probate (so no
more than 4 executors).
Who to choose – big discussion = whether person should choose professional
or non-professional trustee.
Advantage of non-professional trustee = know testator better and therefore
have better understanding of what testator would prefer. Non-professional
trustee less likely to charge and therefore be cheaper.
Advantage of professional trustee = have the knowledge, skills and experience
and therefore maybe best able to deal with these scenarios
Identifying the executors in the will –
Charging clause – general rule = no payment. The exception is that trust
corporations can be paid and if someone is a professional trustee they can be
paid if all other trustees agree in writing. Common and good practice to
include a charging clause in the will which makes it clear that the executors
can be paid.
, If client chooses solicitor as executor, need to think how this should be
drafted. What the client really wants to do is name the individual who is acting
as a solicitor at the firm at the time of the testator’s death. Draft it by referring
to the ‘partners at the firm at the time of the testator’s death’. Sometimes
firms change their name and therefore clause should make it clear that the will
still stands if the firm changes its name, if the firm merges with another firm or
if the firm becomes a legal partnership (LLP)
Appointment of guardians
If testator has young children, they need to consider who to appoint as
guardians. Guardians = responsible for looking after children if testator dies.
Specific gifts Beneficiary has to be clearly identified
Property being given has to be identified
Identifying beneficiary
Be careful how names are spelt e.g. John can be spelt Jon, or Linzi can
be spelt as Lindsay, Lindsey etc. Make sure it is spelt the correct way
May need to add address/date of birth/relationship with testator as
well as name where the name is very common e.g. John Smith
Examples
‘To my neighbour Alice’ – testator’s neighbour at time they died so if someone
called Alice moves in a week before they die, they get to inherit. Also
‘neighbour’ is quite vague, does it just mean the people who live next door?
Does it mean people who live on the same road? Would’ve been better to
identify Alice by her full name.
‘To my grandchildren’ – this means to any grandchildren testator will ever
have. This includes grandchildren who are alive when testator dies but will also
include any grandchildren conceived/born in the future. This means that things
have to be kept open until such a point that it is clear that the testator cannot
have any more grandchildren. It is more common to put ‘to my grandchildren
who re alive at the date of my death’ so that there is a clear cut off point.
Minor beneficiaries
If testator gifts property to someone under 18 it is always held on
statutory trust until they are 18. Parents give receipt.
Will can specify a different age which they receive the gift e.g. 21 and
who are the trustees
What if beneficiary is a charity
Clause should be clear who can give a receipt for the property. Usually
an authorised officer from the charity.
Sometimes charities close/change and therefore often a good idea to
be aware that it is worth making sure that if there is a problem with a
charity, it can be used for another charity. Clause must specify that it is
for ‘general charitable purposes’
Lapse
Example
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