LPC NOTES
[WILLS]
(2019-2020)
, WILLS
Succession to property on death: the background law
WHAT PROPERTY CAN PASS BY A WILL OR THE INTESTACY RULES?
If there is a will, estate will pass according to the will, if not then it will
follow the intestacy rules.
Some types of property pass on death independently of the terms of will or
the intestacy rules.
WHAT PROPERTY PASSES INDEPENDENTLY OF THE WILL?
Joint property
Where property is held by joint tenants in equity, interest passes by
survivorship on death.
Where tenant in common, share passes on his death under will (or under
intestacy rules).
Nominated property
Can ‘nominate’ what’s to happen to certain types of funds, applies to
deposits not exceeding £5000 certain trustee savings banks, friendly
societies and industrial and provident societies.
Nomination is direction to institution to pay money in account, to a
nominated third party.
If nomination, property passes regardless of the terms of the will (if any)
or intestacy rules.
Insurance policies
Life policy in benefit of person, proceeds paid according with terms of
will/intestacy rules.
life assurance policy for benefit of specified individuals - gift on trust –
done in 2 ways:
(a) Married Women’s Property Act 1882, s 11 - person taking out a
life assurance policy can express to be benefit for spouse/children -
creating a trust in favour of beneficiaries.
(b) A policy may be expressly written in trust for or assigned to named
beneficiaries.
Pension benefits
, Many pension schemes provide for the payment of benefits if an
employee dies ‘in service’.
lump sum calculated on basis of the employee’s salary at time of his
death - paid by trustees of pension fund to members of the family or
dependants chosen at their discretion.
usually allow employee a letter of wishes indicating which people to
benefit – not binding.
Such pension benefits do not belong to the employee during his lifetime
and pass on death independently of the terms of any will.
THE REQUIREMENTS FOR A VALID WILL
Capacity
Be aged 18 or over (with certain limited exceptions) and have requisite
mental capacity.
Banks v Goodfellow (1870) LR 5 QB 549 as ‘soundness of mind,
memory and understanding’.
The testator must understand:
(a) the nature of his act and its broad effects;
(b) extent of his property (not necessarily recollecting every individual
item); and
(c) the moral claims he ought to consider.
Testator must not suffer from any insane delusion which affects
disposition of property.
Proof and presumptions
Common law, must prove all necessary elements, including mental
capacity, present.
Mental Capacity Act 2005 s 1(1) - certain principles apply for
purposes of Act, s 1(2) - ‘a person must be assumed to have capacity
unless it is established that he lacks capacity’.
s 1(2) - anyone who alleged lack of capacity to make a will would
have to prove it.
Scammell v Farmer [2008] - only case in which the effect of the Act
has been considered.
Act applies only to decisions taken on behalf of another under the Act,
so it ought not apply to the assessment of a person’s capacity to make
his own will.
, Perrins v Holland [2009], Lewison J said, common law test
superseded by Mental Capacity Act 2005.
Intention
When the will is signed, the testator must have both general and specific
intention.
Therefore testator must intend to make a will and to make the particular
will being executed
Proof and presumptions
Burden of proving testator’s knowledge and approval falls on person
putting forward the will.
A testator who has capacity and has executed his will, having read it, is
presumed to have the requisite knowledge and approval.
this presumption does not apply in the situations listed below.
Testator blind/illiterate/not signing personally
The probate registrar will require evidence to prove knowledge and
approval.
It is usual to include a statement at the end of the will stating that
the will was read over to the testator, or read by the testator who
knew and approved the contents.
Suspicious circumstances
Gill v Woodall [2010] EWCA Civ 1430.
Must act within SRA objectives.
Undue influence and mistake
any person who wishes to challenge the will (or any part of it) must
prove one or more of the following to prevent some or all of the will
from being admitted to probate.
Force, fear, fraud or undue influence
Mistake
Any words included without the knowledge and approval of the
testator will be omitted from probate.
distinguish between actual mistake and misunderstanding.
Misunderstanding will not invalidate the will.
Formalities for execution
S 9 Wills Act 1837 (as substituted by Administration of Justice Act
1982, s 17) provides:
No will shall be valid unless—
[WILLS]
(2019-2020)
, WILLS
Succession to property on death: the background law
WHAT PROPERTY CAN PASS BY A WILL OR THE INTESTACY RULES?
If there is a will, estate will pass according to the will, if not then it will
follow the intestacy rules.
Some types of property pass on death independently of the terms of will or
the intestacy rules.
WHAT PROPERTY PASSES INDEPENDENTLY OF THE WILL?
Joint property
Where property is held by joint tenants in equity, interest passes by
survivorship on death.
Where tenant in common, share passes on his death under will (or under
intestacy rules).
Nominated property
Can ‘nominate’ what’s to happen to certain types of funds, applies to
deposits not exceeding £5000 certain trustee savings banks, friendly
societies and industrial and provident societies.
Nomination is direction to institution to pay money in account, to a
nominated third party.
If nomination, property passes regardless of the terms of the will (if any)
or intestacy rules.
Insurance policies
Life policy in benefit of person, proceeds paid according with terms of
will/intestacy rules.
life assurance policy for benefit of specified individuals - gift on trust –
done in 2 ways:
(a) Married Women’s Property Act 1882, s 11 - person taking out a
life assurance policy can express to be benefit for spouse/children -
creating a trust in favour of beneficiaries.
(b) A policy may be expressly written in trust for or assigned to named
beneficiaries.
Pension benefits
, Many pension schemes provide for the payment of benefits if an
employee dies ‘in service’.
lump sum calculated on basis of the employee’s salary at time of his
death - paid by trustees of pension fund to members of the family or
dependants chosen at their discretion.
usually allow employee a letter of wishes indicating which people to
benefit – not binding.
Such pension benefits do not belong to the employee during his lifetime
and pass on death independently of the terms of any will.
THE REQUIREMENTS FOR A VALID WILL
Capacity
Be aged 18 or over (with certain limited exceptions) and have requisite
mental capacity.
Banks v Goodfellow (1870) LR 5 QB 549 as ‘soundness of mind,
memory and understanding’.
The testator must understand:
(a) the nature of his act and its broad effects;
(b) extent of his property (not necessarily recollecting every individual
item); and
(c) the moral claims he ought to consider.
Testator must not suffer from any insane delusion which affects
disposition of property.
Proof and presumptions
Common law, must prove all necessary elements, including mental
capacity, present.
Mental Capacity Act 2005 s 1(1) - certain principles apply for
purposes of Act, s 1(2) - ‘a person must be assumed to have capacity
unless it is established that he lacks capacity’.
s 1(2) - anyone who alleged lack of capacity to make a will would
have to prove it.
Scammell v Farmer [2008] - only case in which the effect of the Act
has been considered.
Act applies only to decisions taken on behalf of another under the Act,
so it ought not apply to the assessment of a person’s capacity to make
his own will.
, Perrins v Holland [2009], Lewison J said, common law test
superseded by Mental Capacity Act 2005.
Intention
When the will is signed, the testator must have both general and specific
intention.
Therefore testator must intend to make a will and to make the particular
will being executed
Proof and presumptions
Burden of proving testator’s knowledge and approval falls on person
putting forward the will.
A testator who has capacity and has executed his will, having read it, is
presumed to have the requisite knowledge and approval.
this presumption does not apply in the situations listed below.
Testator blind/illiterate/not signing personally
The probate registrar will require evidence to prove knowledge and
approval.
It is usual to include a statement at the end of the will stating that
the will was read over to the testator, or read by the testator who
knew and approved the contents.
Suspicious circumstances
Gill v Woodall [2010] EWCA Civ 1430.
Must act within SRA objectives.
Undue influence and mistake
any person who wishes to challenge the will (or any part of it) must
prove one or more of the following to prevent some or all of the will
from being admitted to probate.
Force, fear, fraud or undue influence
Mistake
Any words included without the knowledge and approval of the
testator will be omitted from probate.
distinguish between actual mistake and misunderstanding.
Misunderstanding will not invalidate the will.
Formalities for execution
S 9 Wills Act 1837 (as substituted by Administration of Justice Act
1982, s 17) provides:
No will shall be valid unless—
