Private Client Preparatory and Workshop Task Notes - Stuvia
Unit 1: Will Drafting
Preparatory Task 1
Work out who is now entitled to Mrs. Thompson’s estate.
WILL
This is the last Will and Testament of me Helen Thompson of 3 Hurst Rise, London
SW4.
1. I revoke all former wills and codicils made by me.
2. I appoint my friend John Simons of 12 Hurst Rise, London SW4 to be my
executor and give him a legacy of £500. – s. 15 Wills Act 1837 – fails if relative
of witness and gift would lapse
3. I give to my sister Margaret Scott of The Beeches, Bourton Astley, Wiltshire the
grand piano I inherited from our mother as I know she will care for it as I have.
– Pre-deceased so lapses, piano falls into residue. S33 does not apply because
she is a sister so not direct descendant.
4. I give all the rest of my estate to my daughters Sarah and Anne in equal shares.
– Sarah: 50% partial intestacy, distributed as 25% via Anne to Michael and 25%
to Andrew. Anne: 50% vests, so passes to Michael. £225,000 to Michael,
£75,000 to Andrew
Dated the 26th day of September 2007
Signed by Helen Thompson in our Helen Thompson
joint presence and then by us in hers
Mary Simons – is she related to the executor?
12 Hurst Rise
London SW4
Moira Phillips
6 Hurst Rise
London SW4
1
, Private Client Preparatory and Workshop Task Notes - Stuvia
Workshop Task 1
1. Richard Green is considering leaving his property in France to his two younger
children as Helen is thinking of leaving Lilac Cottage to Michael.
Will such a gift be effective? Is there anything you should include in the will
to facilitate Richard’s wishes in relation to the property being effective?
• Realty - law of the country where land is situated.
• By default where a property is in another jurisdiction, it passes under that
jurisdiction’s law by default. Intended gift may not take effect. Clause should
be included to state property should pass under English Law (Brussels IV).
• EU Succession Regulation (Brussels IV)
• UK opted out
• Succession governed by law of jurisdiction where deceased habitually
resident. Article 22 (see 1.9 of Will Precedents)
• Take local advice - Regulation does not affect tax position. Tax in UK &
France (Double Tax Relief)
• Separate French Will may be required for clarification.
2. What criticisms do you have of the Opening and Appointments in the draft
will?
• Opening - add a space for date.
• Named executors not partners in firm.
• Guardians should wife predecease.
3. Explain whether the gifts in clause 3 of the draft will are satisfactory.
• Burden of tax (n/a here as spouse exempt),
• Charges
• Ademption / substitution
• Separate sub-clauses for house and shares.
4. What would Richard want to happen to his residuary estate in the following
circumstances?
(a) Richard dies, survived by his wife, Helen, and all three children. One
year later, Alex dies, aged 20, leaving a son, Shaun, who subsequently
reaches the age of 18.
! Shaun does not take. Amend clause so substitution occurs if any
child fails to attain 21yrs.
(b) Richard dies, survived only by his wife, Helen, and Michael aged 23.
! Shares of Sarah and Alex pass to Michael (clause 4(b)).
© Richard dies, survived by his wife, Helen, Sarah and Alex. Later, Sarah
dies aged 19 and Alex dies aged 9. There are no grandchildren.
! Residue passes to Missions to Seamen. Amend to include Helen as
primary substitute beneficiary.
2
, Private Client Preparatory and Workshop Task Notes - Stuvia
Does the trainee’s draft will achieve the desired result? Explain how you
would amend clauses 4 and 5 of the trainee’s draft will.
• Consider whether children should be named or class gift.
• Drafting points:
• “Residuary Estate” (defined term)
• clause 4 numbering - consistent with rest of will (4.1 and 4.2).
• Clause 4(b) uses the phrase ‘my estate’ rather than ‘Residuary Estate’.
• Gift to Missions to Seaman needs receipt clause and provision if no longer
exists at time.
5. Explain any amendments or additions you would make to clauses 6-8 and
the end of the trainee’s draft will.
Clauses 6 and 7 (administrative provisions):
• R does not want to exclude s31 completely - just postpone beneficiaries’ right
to income.
• clause 7- all are appropriate.
• Extend s32 TA 1925? Unnecessary - Inheritance and Trustees’ Powers Act
2014 applies.
• Power to lend without taking security (cl. 7.1)
• Insurance provision should relate to ‘estate’ not just ‘Residuary Estate’ (to
cover the Barn during administration).
Declarations and Ending:
• Delete charging clause –already included in clause 2.4.
• Negligence exclusion - inappropriate for professional trustees? Must draw to
R’s attention.
• Include survivorship clause.
• Receipt clause for gift to charity + provision for merger, change of name etc.
• Complete testimonium (space for date unless included earlier).
• Attestation clause – otherwise no presumption of due execution.
Workshop Task 2
1. Using the precedent attached, draft the clause dealing with residue.
7.4 Gift of residue on trust with life interests
(a) I give all the rest of my estate not otherwise disposed of by my will to my
Trustees upon trust to pay my debts funeral and testamentary expenses
and legacies and to hold the balance (“my Residuary Estate”) on the
following trusts:
(i) to pay the income to my wife during her lifetime and then
3
, Private Client Preparatory and Workshop Task Notes - Stuvia
(ii) to pay my Residuary Estate to such of my children as are living at
the death of the survivor of myself and my wife who attain the age
of 21 and if more than one in equal shares provided that
(b) if any child of mine shall die in my lifetime or survive me but die before
attaining a vested interest in my Residuary Estate leaving a child or
children living at the death of the survivor of myself and my wife such
child or children shall provided they attain the age of 18 take by
substitution and if more than one in equal shares the share of my
Residuary Estate which his her or their parent would have taken had he
or she survived me to attain a vested interest.
2. List any additional administrative provisions you think will be required for
this life interest trust.
• Make sure draft was updated to include the power to advance capital
to the life tenant so H can access funds during her lifetime.
3. Assume that Richard has died having executed the above will, but Helen is
still alive. Explain whether sections 31 and 32 of the Trustee Act 1925 (which
have not been amended by the will) would allow the trustees to do the
following:
(a) give £70,000 to Michael (aged 20) to set up a new business; and
• Trustees can advance the whole of M’s legacy of £50,000
• Trustees could also advance M’s share of the residue, but
would need H’s consent because M isn’t yet 21
Note: M is entitled to £50,000 because this is the size of gift R wants
to leave for him, then the additional £20,000 can come subject to H’s
agreement
(b) use £12,000 of trust income to pay Alex’s school fees.
• Trustees can apply the income from Alex’s legacy for his
maintenance, education or benefit, which means they could
pay the school fees from that income without any difficulties
4
Unit 1: Will Drafting
Preparatory Task 1
Work out who is now entitled to Mrs. Thompson’s estate.
WILL
This is the last Will and Testament of me Helen Thompson of 3 Hurst Rise, London
SW4.
1. I revoke all former wills and codicils made by me.
2. I appoint my friend John Simons of 12 Hurst Rise, London SW4 to be my
executor and give him a legacy of £500. – s. 15 Wills Act 1837 – fails if relative
of witness and gift would lapse
3. I give to my sister Margaret Scott of The Beeches, Bourton Astley, Wiltshire the
grand piano I inherited from our mother as I know she will care for it as I have.
– Pre-deceased so lapses, piano falls into residue. S33 does not apply because
she is a sister so not direct descendant.
4. I give all the rest of my estate to my daughters Sarah and Anne in equal shares.
– Sarah: 50% partial intestacy, distributed as 25% via Anne to Michael and 25%
to Andrew. Anne: 50% vests, so passes to Michael. £225,000 to Michael,
£75,000 to Andrew
Dated the 26th day of September 2007
Signed by Helen Thompson in our Helen Thompson
joint presence and then by us in hers
Mary Simons – is she related to the executor?
12 Hurst Rise
London SW4
Moira Phillips
6 Hurst Rise
London SW4
1
, Private Client Preparatory and Workshop Task Notes - Stuvia
Workshop Task 1
1. Richard Green is considering leaving his property in France to his two younger
children as Helen is thinking of leaving Lilac Cottage to Michael.
Will such a gift be effective? Is there anything you should include in the will
to facilitate Richard’s wishes in relation to the property being effective?
• Realty - law of the country where land is situated.
• By default where a property is in another jurisdiction, it passes under that
jurisdiction’s law by default. Intended gift may not take effect. Clause should
be included to state property should pass under English Law (Brussels IV).
• EU Succession Regulation (Brussels IV)
• UK opted out
• Succession governed by law of jurisdiction where deceased habitually
resident. Article 22 (see 1.9 of Will Precedents)
• Take local advice - Regulation does not affect tax position. Tax in UK &
France (Double Tax Relief)
• Separate French Will may be required for clarification.
2. What criticisms do you have of the Opening and Appointments in the draft
will?
• Opening - add a space for date.
• Named executors not partners in firm.
• Guardians should wife predecease.
3. Explain whether the gifts in clause 3 of the draft will are satisfactory.
• Burden of tax (n/a here as spouse exempt),
• Charges
• Ademption / substitution
• Separate sub-clauses for house and shares.
4. What would Richard want to happen to his residuary estate in the following
circumstances?
(a) Richard dies, survived by his wife, Helen, and all three children. One
year later, Alex dies, aged 20, leaving a son, Shaun, who subsequently
reaches the age of 18.
! Shaun does not take. Amend clause so substitution occurs if any
child fails to attain 21yrs.
(b) Richard dies, survived only by his wife, Helen, and Michael aged 23.
! Shares of Sarah and Alex pass to Michael (clause 4(b)).
© Richard dies, survived by his wife, Helen, Sarah and Alex. Later, Sarah
dies aged 19 and Alex dies aged 9. There are no grandchildren.
! Residue passes to Missions to Seamen. Amend to include Helen as
primary substitute beneficiary.
2
, Private Client Preparatory and Workshop Task Notes - Stuvia
Does the trainee’s draft will achieve the desired result? Explain how you
would amend clauses 4 and 5 of the trainee’s draft will.
• Consider whether children should be named or class gift.
• Drafting points:
• “Residuary Estate” (defined term)
• clause 4 numbering - consistent with rest of will (4.1 and 4.2).
• Clause 4(b) uses the phrase ‘my estate’ rather than ‘Residuary Estate’.
• Gift to Missions to Seaman needs receipt clause and provision if no longer
exists at time.
5. Explain any amendments or additions you would make to clauses 6-8 and
the end of the trainee’s draft will.
Clauses 6 and 7 (administrative provisions):
• R does not want to exclude s31 completely - just postpone beneficiaries’ right
to income.
• clause 7- all are appropriate.
• Extend s32 TA 1925? Unnecessary - Inheritance and Trustees’ Powers Act
2014 applies.
• Power to lend without taking security (cl. 7.1)
• Insurance provision should relate to ‘estate’ not just ‘Residuary Estate’ (to
cover the Barn during administration).
Declarations and Ending:
• Delete charging clause –already included in clause 2.4.
• Negligence exclusion - inappropriate for professional trustees? Must draw to
R’s attention.
• Include survivorship clause.
• Receipt clause for gift to charity + provision for merger, change of name etc.
• Complete testimonium (space for date unless included earlier).
• Attestation clause – otherwise no presumption of due execution.
Workshop Task 2
1. Using the precedent attached, draft the clause dealing with residue.
7.4 Gift of residue on trust with life interests
(a) I give all the rest of my estate not otherwise disposed of by my will to my
Trustees upon trust to pay my debts funeral and testamentary expenses
and legacies and to hold the balance (“my Residuary Estate”) on the
following trusts:
(i) to pay the income to my wife during her lifetime and then
3
, Private Client Preparatory and Workshop Task Notes - Stuvia
(ii) to pay my Residuary Estate to such of my children as are living at
the death of the survivor of myself and my wife who attain the age
of 21 and if more than one in equal shares provided that
(b) if any child of mine shall die in my lifetime or survive me but die before
attaining a vested interest in my Residuary Estate leaving a child or
children living at the death of the survivor of myself and my wife such
child or children shall provided they attain the age of 18 take by
substitution and if more than one in equal shares the share of my
Residuary Estate which his her or their parent would have taken had he
or she survived me to attain a vested interest.
2. List any additional administrative provisions you think will be required for
this life interest trust.
• Make sure draft was updated to include the power to advance capital
to the life tenant so H can access funds during her lifetime.
3. Assume that Richard has died having executed the above will, but Helen is
still alive. Explain whether sections 31 and 32 of the Trustee Act 1925 (which
have not been amended by the will) would allow the trustees to do the
following:
(a) give £70,000 to Michael (aged 20) to set up a new business; and
• Trustees can advance the whole of M’s legacy of £50,000
• Trustees could also advance M’s share of the residue, but
would need H’s consent because M isn’t yet 21
Note: M is entitled to £50,000 because this is the size of gift R wants
to leave for him, then the additional £20,000 can come subject to H’s
agreement
(b) use £12,000 of trust income to pay Alex’s school fees.
• Trustees can apply the income from Alex’s legacy for his
maintenance, education or benefit, which means they could
pay the school fees from that income without any difficulties
4
