Wills and Administration of Estates
WILLS AND ADMIN: REVISION NOTES
CONTENT
1. Wills and Intestacy
Validity of wills and codicils
Property passing outside of the estate
Intestacy Rules
Alterations and Revocations
Interpretation of wills
Personal Representatives
2. Administration
Grants of representation
Administration of Estate: Dealing with the assets
Claims under the Inheritance (Provision for Family and Dependents) Act 1975
3. Taxation
IHT
Income tax
CGT
WILLS AND INTESTACY
VALIDITY OF WILLS AND CODICILS
Capacity 18 or over
Three requirements of a valid will: Requisite mental capacity (At the time the
will was executed:
1. Capacity o Understood the nature of the act and it
2. Intention broad effects
3. Executed in accordance with s9 WillsExtent
o of their property
Act 1837
o Any moral claims
o Not suffering from any insane delusions
Presumption of capacity where the will appears
rational if someone challenges the will, the burden
shifts to them to disprove this.
Intention General intention – intent to make a will
Specific Intention – intended to make that
will
General rule presumption of knowledge and
approval, as long as the testator signed themselves
Exceptions
Testator blind/illiterate
Not signed personally
Coercion or duress
Mistake
Executed in accordance with In writing and signed by the testator
s9 Wills Act 1837 (though the testator could direct someone else
to)
Intended by signature to give effect to the
will
Acknowledged in the presence of two
witnesses
The witnesses signed in the testator’s
presence
,Wills and Administration of Estates
Where the witness is a beneficiary or a
beneficiaries’ spouse, a gift will be invalid.
Attestation clause there is a presumption of due
execution unless signed by someone else.
Where signed by someone else an affidavit of due
execution would be appropriate.
Property passing outside of the will
Joint property- survivorship
Insurance policies
Pension benefits
Trust property
INTESTACY RULES
Operate where:
There is no valid will
An invalid will
Will fails to dispose of the whole of the estate
Scenario What happens to the estate
Statutory
Surviving Trusts/Issue:
spouse or civil partner and Spouse receives personal chattels and
issue an absolute legacy of £322,000
Primary beneficiaries – the living children, split equally
Residuary estate divided in half
Grandchildren o ½ on trust for spouse or civil
partner
o Other ½ for issue on statutory
trusts
Must survive them 28 days
No surviving spouse or civil partner Order of entitlement:
1. Issue on statutory trusts
2. Parents
3. Brothers and Sisters
4. Half siblings
5. Grandparents
6. Uncles and aunts
7. Half uncles and aunts
8. Bona Vacantia – goes to the crown
Adopted children are treated for intestacy purposes as the children of their
adoptive parents.
Human Fertilization and Embryology Act – resolves that a child will be entitled to
their parent’s estate
INTERPRETATION OF WILLS
The task when interpreting a will, the testator’s intention as expressed in the will when
read as a whole.
Two basic presumptions are applied:
Non-technical words bear their ordinary meaning
Technical words are given their technical meaning
, Wills and Administration of Estates
General rule the court is not prepared to consider other evidence in order to try to
establish what the testator intended. If the meaning is unclear the gift will fail for
uncertainty.
The court will look at extrinsic evidence where the wording is
meaningless
ambiguous on the face of it
ambiguous in the light of surrounding circumstances
The court has the power to rectify the will where the testator’s intentions are
clear but the wording does not carry them to effect.
Property passing under the will
A will speaks from the date of death, unless contrary intention appears in the will
A will speaks from the date of execution, unless contrary intention appears in the
will
Failed gifts
Generic Gifts not tied to a specific item but rather to a category or value
Specific Gift A particular asset/ item
A gift may fail where:
There is uncertainty
A beneficiary witnessed the will
Divorce/dissolution
The gift Adeems as the testator no longer own the property at death
o If the asset has been changed but is substantially the same it will not fail
o If the substance has changed, the gift will have adeemed
o Ademption only applies to a specific gift.
Lapse the beneficiary dies before the testator
o If two people die at the same moment, the oldest is assumed to have died
first
o Gift to one or more person – in equal portions, the portion will pass by
intestacy, a class gift will be split.
Disclaimer beneficiary does not accept the gift, the gift then passes on
residue/intestacy
Forfeiture A person should benefit from the estate of someone they have
unlawfully killed
ALTERATIONS AND REVOCATIONS
Revocation
WILLS AND ADMIN: REVISION NOTES
CONTENT
1. Wills and Intestacy
Validity of wills and codicils
Property passing outside of the estate
Intestacy Rules
Alterations and Revocations
Interpretation of wills
Personal Representatives
2. Administration
Grants of representation
Administration of Estate: Dealing with the assets
Claims under the Inheritance (Provision for Family and Dependents) Act 1975
3. Taxation
IHT
Income tax
CGT
WILLS AND INTESTACY
VALIDITY OF WILLS AND CODICILS
Capacity 18 or over
Three requirements of a valid will: Requisite mental capacity (At the time the
will was executed:
1. Capacity o Understood the nature of the act and it
2. Intention broad effects
3. Executed in accordance with s9 WillsExtent
o of their property
Act 1837
o Any moral claims
o Not suffering from any insane delusions
Presumption of capacity where the will appears
rational if someone challenges the will, the burden
shifts to them to disprove this.
Intention General intention – intent to make a will
Specific Intention – intended to make that
will
General rule presumption of knowledge and
approval, as long as the testator signed themselves
Exceptions
Testator blind/illiterate
Not signed personally
Coercion or duress
Mistake
Executed in accordance with In writing and signed by the testator
s9 Wills Act 1837 (though the testator could direct someone else
to)
Intended by signature to give effect to the
will
Acknowledged in the presence of two
witnesses
The witnesses signed in the testator’s
presence
,Wills and Administration of Estates
Where the witness is a beneficiary or a
beneficiaries’ spouse, a gift will be invalid.
Attestation clause there is a presumption of due
execution unless signed by someone else.
Where signed by someone else an affidavit of due
execution would be appropriate.
Property passing outside of the will
Joint property- survivorship
Insurance policies
Pension benefits
Trust property
INTESTACY RULES
Operate where:
There is no valid will
An invalid will
Will fails to dispose of the whole of the estate
Scenario What happens to the estate
Statutory
Surviving Trusts/Issue:
spouse or civil partner and Spouse receives personal chattels and
issue an absolute legacy of £322,000
Primary beneficiaries – the living children, split equally
Residuary estate divided in half
Grandchildren o ½ on trust for spouse or civil
partner
o Other ½ for issue on statutory
trusts
Must survive them 28 days
No surviving spouse or civil partner Order of entitlement:
1. Issue on statutory trusts
2. Parents
3. Brothers and Sisters
4. Half siblings
5. Grandparents
6. Uncles and aunts
7. Half uncles and aunts
8. Bona Vacantia – goes to the crown
Adopted children are treated for intestacy purposes as the children of their
adoptive parents.
Human Fertilization and Embryology Act – resolves that a child will be entitled to
their parent’s estate
INTERPRETATION OF WILLS
The task when interpreting a will, the testator’s intention as expressed in the will when
read as a whole.
Two basic presumptions are applied:
Non-technical words bear their ordinary meaning
Technical words are given their technical meaning
, Wills and Administration of Estates
General rule the court is not prepared to consider other evidence in order to try to
establish what the testator intended. If the meaning is unclear the gift will fail for
uncertainty.
The court will look at extrinsic evidence where the wording is
meaningless
ambiguous on the face of it
ambiguous in the light of surrounding circumstances
The court has the power to rectify the will where the testator’s intentions are
clear but the wording does not carry them to effect.
Property passing under the will
A will speaks from the date of death, unless contrary intention appears in the will
A will speaks from the date of execution, unless contrary intention appears in the
will
Failed gifts
Generic Gifts not tied to a specific item but rather to a category or value
Specific Gift A particular asset/ item
A gift may fail where:
There is uncertainty
A beneficiary witnessed the will
Divorce/dissolution
The gift Adeems as the testator no longer own the property at death
o If the asset has been changed but is substantially the same it will not fail
o If the substance has changed, the gift will have adeemed
o Ademption only applies to a specific gift.
Lapse the beneficiary dies before the testator
o If two people die at the same moment, the oldest is assumed to have died
first
o Gift to one or more person – in equal portions, the portion will pass by
intestacy, a class gift will be split.
Disclaimer beneficiary does not accept the gift, the gift then passes on
residue/intestacy
Forfeiture A person should benefit from the estate of someone they have
unlawfully killed
ALTERATIONS AND REVOCATIONS
Revocation
