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Wills and Administration of Estates – Course Summary
TOPIC 1: VALIDITY OF WILLS, HOW PROPERTY PASSES ON DEATH AND INTESTACY:
Assets not passing independently/under a will are distributed according to the intestacy rules contained in
Administration of Estates Act 1925 (AEA).
Different kinds of property pass independently of the terms of any will or the intestacy rules:
Joint Property held by more than one person as beneficial joint tenants, and interest passes by survivorship
property ≠ share of a T in common —> passes under will or intestacy rules.
Insurance Simple policy of life assurance —> on person’s death, policy matures, and proceeds distributed by PRs
policies under will/intestacy.
However, life insurance policy written in trust for the benefit of specified individuals OR policy is
transferred/assigned to named beneficiaries —> on holder’s death policy goes to trustees/beneficiaries.
Pension Pension benefits when employee dies ‘in service’ —> on death, money paid by trustees of pension fund to
benefits family members (etc) (deceased can leave a letter of wishes which isn’t binding) = passes independently.
If pension scheme provides money is to be paid to deceased’s PRs, then PRs must distribute the money
according to the terms of the employee’s will or the intestacy rules.
Trust Many equitable interests come to an end on the beneficiary’s death, eg life interests.
property Trust property devolves according to the terms of the trust and not the deceased life tenant’s will.
After a person’s death, the family may consult a solicitor to advise on who inherits the deceased’s estate. The
solicitor will deal with the deceased’s assets in the following order:
a. Property passing outside the will
b. Property passing under the will
c. Any property not disposed of in (a) and (b) passing on intestacy.
Wills terminology:
Revocation clause Revokes prior wills = makes it clear that earlier wills are of no effect.
Direction as to Directions concerning how their body is to be disposed of, ie cremation, woodland burial or donation
disposal of the for medical research. Such directions have no legal effect, and the testator should ensure that their close
body family and friends are aware of their wishes.
Appointment of Executor: person who deals with the testator’s affairs after their death. Their task: (i) collect in all the
executors/PRs testator’s assets, (ii) pay the deceased’s debts and any IHT and (iii) distribute the remaining assets to
whoever is entitled under the will.
Following T’s death—> executor makes an app to His Majesty’s Courts and Tribunals Service Probate
(HMCTS) for a grant of probate = confirms the will is valid and that the executor has authority to act.
Gifts ‘legacies’: term for gifts of personalty. ‘Devise’: gift of realty. Gifts in wills can be further classified as:
Specific gift Gift of a specific item or items which the testator owns, which is distinguished in the will from the rest
of the testator’s assets (specific legacies or specific devises).
General gift Gift of an item or items corresponding to a description. If testator does not own the item(s) at death,
the executors must obtain the item(s) using funds obtained from the estate. —> Ie. ‘I give 100 shares in
X plc to my son’. If T does not own 100 such shares at his death, then they must be purchased.
Demonstrative gift Gift that is general in nature but is directed to be paid from a specific fund, ie ‘I give £500 to X to be
paid from my Nationwide savings account’. —> If there is no account (or if it contains less than £500),
the legacy is paid, in whole (or in part), from the rest of the estate.
Pecuniary gift Gift of money - will usually be general, but could be demonstrative, or even specific, ie ‘I give the
£100 held in the safe in the study’.
Residuary gift ‘The residue’. A residuary gift comprises all the money and property left after the testator’s debts, the
expenses of dealing with the estate and the other gifts made under the will have all been paid.
The requirements for a valid will: (1) capacity; (2) intention; (3) formalities (Wills Act 1837).
Capacity Test: valid will = (i) must be 18 + (limited exceptions); (ii) must have the requisite mental capacity.
Banks v Goodfellow: ‘testamentary capacity’ = ‘soundness of mind, memory and understanding’.
Understand nature and effects of their act;
Understand extent of their property (not necessary to recollect every individual item): and
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, Understand the moral claims they ought to consider (even if eventually rejected).
AND: T must not be suffering from any insane delusion which affects the disposition of property.
General rule: Ts must have capacity at the time they execute their wills.
Exception (Parker v Felgate): a will can be valid if the testator has capacity when they give
instructions for the will even if they lose capacity by the time the will is executed —> instructions: (i)
given to a solicitor; (ii) who prepares will in accordance with instructions and (iii) at time of execution,
they appreciate what they are signing.
Statutory test (Mental Capacity Act 2005) provides a useful ‘cross-check’ – but case law test applies.
NB. T mentally incapable of making a valid will = ‘statutory will’ made on their behalf under MCA.
Court of Protection empowers an authorised person to execute will and gives effect to will by affixing
the court seal. —> Court requires full details of deceased, their family, property and previous wills and
will approve a draft will only if it is in the testator’s best interests.
The golden rule: If T lacks capacity, the will is void. Where T’s mental state is in doubt (ie due to age or ill
health) S preparing will should follow the ‘golden rule’ suggested in Kenward v Adams (1975):
ask a medical practitioner to provide a written report confirming that T has testamentary capacity and
also ask the doctor to witness the will. S should also record their own view as to T’s capacity.
Burden of proof: General rule = it is for the person who is asserting that a will is valid to prove it. Q of validity
arises after T’s death when executors apply for grant of probate.
Presumption of capacity: there is a presumption that T satisfied the mental capacity test. Applies if
the will is rational on its face + T showed no evidence of mental confusion before making the will.
Someone challenges will for lack of capacity = burden shifts to challenger to prove lack of capacity.
Reluctance to hold will invalid if a rational will was prepared by an experienced, independent
solicitor who met the testator and explained the will to them (and, if any, medical report).
Intention At signing of will, T must have both general and specific intention.
Testator must intend to make a will (ie that sort of document), and
Must intend to make the particular will being executed (Ie must know and approve its contents).
T must have intention at the time will is executed – but Parker v Felgate exception applies.
Burden of proof: General rule = it is for the person asserting that a will is valid to prove it.
Presumption of knowledge and approval: T who has capacity and has read and executed the will is
presumed to have the requisite knowledge and approval.
Presumption does not apply where:
T is blind/illiterate/not signing personally: HMCTS will require evidence to prove knowledge
and approval before issuing a grant of probate = include statement that will was read to T.
Suspicious circumstances around drafting and/or execution of the will (ie will was prepared by
someone who is to be a major beneficiary).
Executor must remove suspicion by proving T’s knowledge & approval.
Presumption does not apply if whole/part of the will was included by mistake: words included without
the knowledge and approval of the testator will be omitted from probate. Distinguish between:
Actual mistake (ie absence of knowledge and approval) and
Misunderstanding as to the legal meaning of words used: words will not be omitted.
A solicitor should not accept instructions from a third party to draw up a will for a T.
Force, fear, fraud, undue influence and mistake:
Where capacity + intention present, who wishes to challenge will must prove one or more:
Force or fear: actual or threatened injury, or
Fraud: ie. after being misled by some pretence, or
Undue influence: where Ts freedom of choice overcome by intolerable pressure, but their judgement
remained unconvinced. – Nothing less than coercion or duress will do. Must be proved.
Formalities S 9 Wills Act 1837:
of Will must be in writing: no restrictions on the materials or type of wording.
execution o BUT: electronic will held only on a computer probably would not be considered ‘writing’.
Will must be signed: any signature acceptable provided T intends signature to represent their name.
o ‘Your loving mother’ was held to be valid.
o S 9 allows a person to sign in T’s behalf: T must give a positive and discernible direction
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, (verbal or non-verbal) that they want the person to sign on their behalf.
T must have intended to give effect to the will by his signature.
The signature must be witnessed - 2 stages:
o T’s signature made/acknowledged in the presence of two witnesses, present at the same time.
Witnesses not present = acknowledging signatures: person confirm it’s their signature
o The two witnesses sign will in the presence of T (not necessarily in presence of each other).
o ‘Presence’: mental and physical presence = (i) mental: aware T is signing a doc; (ii) physical:
must see/be able to see T signing - unobstructed line of sight.
Example: T signs in front of one witness = not valid. A second person enters the room. T can acknowledge
their signature in front of the second witness. Both witnesses then sign in T’s presence = valid execution.
S 15 Wills Act: If either witness is a beneficiary under the will or is the spouse or civil partner of a beneficiary,
the will remains valid but the gift to the witness or to the witness’s spouse/civil partner fails.
Remote witnessing – temporary: applies to wills made on or before 31 January 2024.
T must physically sign the will (or acknowledge an earlier physical signature).
The will must then be taken or posted to the witnesses.
Witnesses must physically sign the will in the virtual presence of T.
Privileged wills – exception to s 9: will made on actual military service or by a mariner or seaman at sea may
be in any form, including a mere oral statement (s 11 Wills Act 1837). Only req: T intends to dispose of prop.
Burden of proof: General rule = it is for the person who is asserting a will is valid to prove it.
Presumption of due execution arises if the will includes a clause which recites that the s 9 formalities
were observed - attestation clause.
No attestation clause: HMCTS will require affidavit of due execution (or witness statement verified
by a statement of truth) from a witness or whoever was present at the execution. Or: refer to a judge.
Solicitors’ duties:
S preparing will = give clear instructions to their clients explaining how to sign and witness the will, and
warning that beneficiaries and those married to beneficiaries should not be witnesses.
If executed at home: ask to return the will so that S can check that s 9 appears to have been complied with.
Failure to carry out these duties may lead to liability in negligence. Solicitors preparing wills owe a duty of
care to the prospective beneficiaries.
—
INTESTACY:
Intestacy rules (Administration of Estates Act 1925 (AEA 1925)) operate in 3 situations:
1. Where there is no will (either never made or successfully revoked) - total intestacy
2. Where there is an invalid will, or a valid will failing to dispose of any of the estate - total intestacy
3. Where there is a valid will, but it fails to dispose of all the deceased’s estate - partial intestacy.
o This occurs if the will simply omitted a gift of residue or if a residuary gift fails
o Partial intestacy: intestacy rules only apply to that part of the estate not disposed of by the will.
Rules: mandatory – cannot be excluded (other than by will), can be displaced in limited circumstances.
Rules apply only to property which is capable of being left by will.
Statutory trust: rules impose a trust over all the property (real and personal) in respect of which a person
dies intestate (s 33 AEA 1925). – held on trust by persons dealing with the estate (PRs).
Under trust PRs must pay funeral, testamentary and administration expenses + any debts of deceased.
Balance remaining: residuary estate to be shared under the rules in in s 46 AEA 1925.
The PRs have power under s 41 AEA 1925 to appropriate assets in or towards satisfaction of a beneficiary’s
share (with the beneficiary’s consent).
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, Distribution is based on the presumed intention of the deceased designed to effect the will which the deceased
would have made if they had thought about it.
The PRs must distribute the residuary estate in accordance with the order set out in s 46 AEA 1925.
Distribution where there is a surviving spouse/civil partner and issue:
‘Spouse’: person the deceased was legally married to at time of their death. Quality of relationship irrelevant.
Former spouse excluded only where divorce is finalized: marriage legally at an end.
Marriages void ab initio - treated in law as if it had never taken place.
o Shaw v Shaw: Mr Shaw remarried while he was still married to his first wife. When he died,
his ‘wife’ was not a ‘spouse’ for the purposes of intestacy.
Voidable marriages: ie entered into under duress or mental disability = valid until court nullity order.
‘Civil partner’: person the deceased was in a civil partnership with at the time of their death.
A cohabitant has no entitlement under the intestacy rules.
‘Issue’: all direct descendants of the deceased: ie children, grandchildren, great grandchildren, etc.
Includes adopted children and children whose parents were not married at time of birth.
Stepchildren (descendants the deceased’s spouse or civil partner) are not issues unless adopted.
Where intestate is survived by both spouse/civil p and issue, the ‘residuary estate’ is distributed as follows:
a. The spouse or civil partner receives the personal chattels absolutely. ‘Personal chattels’ are defined
in s 55(1)(x) of the AEA 1925 as tangible moveable property, other than any such property which–
i. consists of money or securities for money, or
ii. was used at the death of the intestate solely or mainly for business purposes, or
iii. was held at the death of the intestate solely as an investment.
Spouse/civil p receives ‘statutory legacy’ free of tax & costs plus interest from death until payment.
Rate of interest payable: Bank of England rate that had effect at the end of the day of death.
The ‘statutory legacy’ is a set amount fixed by Parliament and for deaths on or after 6
February 2020 £322,000 (was £270,000)
If residuary estate, other than personal chattels, worth less than £322k, spouse receives it all.
c. The rest of the residuary estate (if any) is divided in half. One half is held on trust for the spouse or
civil partner absolutely. The other half is held for the issue on the statutory trusts.
Spouse/civil p must survive the intestate for 28 days to inherit. If dies before that, the estate is distributed as if
the spouse or civil partner has not survived the intestate.
Family home:
Beneficial joint Ts —> pass by survivorship.
Intestate sole name/Ts in common —> part of residuary estate under intestacy.
Under the rules, the family home will not automatically pass to the surviving spouse/civil partner.
Surviving spouse/partner can require PRs to appropriate family home in satisfaction of their interest – to
exercise this right spouse/partner must be living in the property.
House worth more: may require appropriation and pay the difference, ‘equality money’, to the estate.
Spouse/ partner must formally elect to exercise this right and notify the PRs in writing within 12
months of the grant of representation.
Applying the statutory trusts:
That part of the estate which does not pass to the surviving spouse passes to the intestate’s issue on ‘the
statutory trusts.’
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