Wills and Administration of Estates
Table of Contents
Validity of wills and codicils:.....................................................................................................................1
Personal Representatives:.........................................................................................................................2
Alterations and amendments to wills:.......................................................................................................3
Revocation of wills:...................................................................................................................................3
The interpretation of wills:........................................................................................................................4
The intestacy rules:...................................................................................................................................5
Property passing outside the estate:.........................................................................................................6
Grants of representation:..........................................................................................................................6
Administration of estates:.........................................................................................................................9
Claims against estates under the Inheritance (Provision for Family and Dependants) Act 1975:..............11
Inheritance Tax:......................................................................................................................................11
Income and Capital Gains Tax in respect of the period of the administration:..........................................14
Wills and Intestacy
Validity of wills and codicils:
Testamentary capacity
- Testator must (Banks v Goodfellow test):
o Understand the nature of the act and its effects (broad effects)
o Appreciate the extent of the property of which they are disposing (general recollection of what
they own, approximate and relative value)
o Understand and appreciate the moral claims to which they ought to give effect (appreciate who is
owed moral responsibility, but no requirement to leave those people anything)
o Have no disorder of the mind that perverts their sense of right or prevents the exercise of their
natural faculties in disposing of property by will (delusion must be connected and have effect on
terms of the will)
- Capacity must exist at the time the will is executed, except where (Parker v Feldgate test):
o Testator had testamentary capacity at the time they gave instructions for preparation of the will
o The will was prepared in accordance with those instructions
o At the time of execution the testator understood they were signing a will for which they previously
gave instructions
- Golden rule (Kenward v Adams): when taking instructions from an elderly or seriously ill client, a
medical practitioner should be instructed to make an assessment of testator’s capacity, and a
contemporaneous record of the assessment and conclusion should be made
- Capacity is presumed if the will on the face of it appears rational and has been duly executed
Duress and undue influence
- Testator must have both:
o General intention to make a testamentary document which disposes of their property and should
take effect following their death
, o Specific intention to make the particular will they sign (knowledge and approval)
- Knowledge and approval are presumed if testator had testamentary capacity and the will was duly
executed, except where:
o Testator is blind or illiterate
o Will was signed by someone on behalf of testator
o There are suspicious circumstances
- If whole of will is made as a result of duress / undue influence, the will is invalid
o If part of will is made as a result of undue influence, remainder may be given effect provided the
omissions do not upset the whole tenor of what remains
- Duress and undue influence:
o Testator is coerced into making a will or including particular terms against their judgement and
contrary to their true intention
o Goes beyond persuasion, not unlawful to encourage someone to make a will or persuade them to
include certain provisions
o No presumption of undue influence, it is a question of fact
o Burden of proof is on person making the allegation
Formal requirements (s 9 Wills Act 1837)
1. In writing
2. Signed by the testator, or by some other person in his presence and by his direction
3. It appears that the testator intended by his signature to give effect tot eh will
4. Signature is made or acknowledged by the testator in the presence of 2 or more witnesses present
at the same time
5. Each witness either
a. Attests and signs the will, or
b. Acknowledges his signature
6. In the presence of the testator (but not necessarily in the presence of any other witness)
- Witnesses must be over 18 and have capacity
- Attestation clause describes circumstances under which the will was signed
- If a beneficiary or their spouse/civil partner acts as witness, the will is valid but the gift to the
beneficiary is void
- A witness can be an executor
Personal Representatives:
The appointment of executors
- Executors are PRs appointed by will
- Authority to act derives from the will itself and the grant of representation acts as confirmation
- If there is a will but no executor appointed/available/willing to act, or if there is no will, a PR is
appointed under the NCPR and is called an administrator
o Administrators’ authority to act derives from the grant
Renunciation and reservation of power
Renunciation
- Executor formally renounces their right to apply for probate, administration continues as though they
had not been appointed
- Executor must sign a form of renunciation
- Those applying for the grant must submit the form of renunciation to probate registry as evidence of
why an appointed executor is not making the application
- Renunciation will be notes on the grant when it is issued
- Renunciation is final and executor cannot change their mind without court approval
- Executor cannot renounce if they have intermeddled in the estate
Table of Contents
Validity of wills and codicils:.....................................................................................................................1
Personal Representatives:.........................................................................................................................2
Alterations and amendments to wills:.......................................................................................................3
Revocation of wills:...................................................................................................................................3
The interpretation of wills:........................................................................................................................4
The intestacy rules:...................................................................................................................................5
Property passing outside the estate:.........................................................................................................6
Grants of representation:..........................................................................................................................6
Administration of estates:.........................................................................................................................9
Claims against estates under the Inheritance (Provision for Family and Dependants) Act 1975:..............11
Inheritance Tax:......................................................................................................................................11
Income and Capital Gains Tax in respect of the period of the administration:..........................................14
Wills and Intestacy
Validity of wills and codicils:
Testamentary capacity
- Testator must (Banks v Goodfellow test):
o Understand the nature of the act and its effects (broad effects)
o Appreciate the extent of the property of which they are disposing (general recollection of what
they own, approximate and relative value)
o Understand and appreciate the moral claims to which they ought to give effect (appreciate who is
owed moral responsibility, but no requirement to leave those people anything)
o Have no disorder of the mind that perverts their sense of right or prevents the exercise of their
natural faculties in disposing of property by will (delusion must be connected and have effect on
terms of the will)
- Capacity must exist at the time the will is executed, except where (Parker v Feldgate test):
o Testator had testamentary capacity at the time they gave instructions for preparation of the will
o The will was prepared in accordance with those instructions
o At the time of execution the testator understood they were signing a will for which they previously
gave instructions
- Golden rule (Kenward v Adams): when taking instructions from an elderly or seriously ill client, a
medical practitioner should be instructed to make an assessment of testator’s capacity, and a
contemporaneous record of the assessment and conclusion should be made
- Capacity is presumed if the will on the face of it appears rational and has been duly executed
Duress and undue influence
- Testator must have both:
o General intention to make a testamentary document which disposes of their property and should
take effect following their death
, o Specific intention to make the particular will they sign (knowledge and approval)
- Knowledge and approval are presumed if testator had testamentary capacity and the will was duly
executed, except where:
o Testator is blind or illiterate
o Will was signed by someone on behalf of testator
o There are suspicious circumstances
- If whole of will is made as a result of duress / undue influence, the will is invalid
o If part of will is made as a result of undue influence, remainder may be given effect provided the
omissions do not upset the whole tenor of what remains
- Duress and undue influence:
o Testator is coerced into making a will or including particular terms against their judgement and
contrary to their true intention
o Goes beyond persuasion, not unlawful to encourage someone to make a will or persuade them to
include certain provisions
o No presumption of undue influence, it is a question of fact
o Burden of proof is on person making the allegation
Formal requirements (s 9 Wills Act 1837)
1. In writing
2. Signed by the testator, or by some other person in his presence and by his direction
3. It appears that the testator intended by his signature to give effect tot eh will
4. Signature is made or acknowledged by the testator in the presence of 2 or more witnesses present
at the same time
5. Each witness either
a. Attests and signs the will, or
b. Acknowledges his signature
6. In the presence of the testator (but not necessarily in the presence of any other witness)
- Witnesses must be over 18 and have capacity
- Attestation clause describes circumstances under which the will was signed
- If a beneficiary or their spouse/civil partner acts as witness, the will is valid but the gift to the
beneficiary is void
- A witness can be an executor
Personal Representatives:
The appointment of executors
- Executors are PRs appointed by will
- Authority to act derives from the will itself and the grant of representation acts as confirmation
- If there is a will but no executor appointed/available/willing to act, or if there is no will, a PR is
appointed under the NCPR and is called an administrator
o Administrators’ authority to act derives from the grant
Renunciation and reservation of power
Renunciation
- Executor formally renounces their right to apply for probate, administration continues as though they
had not been appointed
- Executor must sign a form of renunciation
- Those applying for the grant must submit the form of renunciation to probate registry as evidence of
why an appointed executor is not making the application
- Renunciation will be notes on the grant when it is issued
- Renunciation is final and executor cannot change their mind without court approval
- Executor cannot renounce if they have intermeddled in the estate
