Wills and Administration of Estates Workbook Notes:
Died testate or intestate:
Died testate = Deceased made a valid will. Died intestate = Deceased did not make a valid will.
Terms of the will determine who inherits AEA 1925 as amended by ITPA 2014 (the intestacy rules)
the succession estate. apply to determine who inherits the succession estate and
Succession estate either way. what each beneficiary receives.
Died partially intestate = Deceased made valid will, but the terms do not dispose all the succession estate.
Will followed but any remaining succession estate property passes in accordance with the intestacy rules.
Assets to pass:
Succession estate/distribution estate = Assets capable of passing under the will or by intestacy.
- Passes to the PR, who is legally responsible for administering the estate.
- PR pays the deceased’s debts, funeral and other expenses.
- Remaining assets then distributed according to order of priority under the intestacy rules or terms of
the will. There may be assets that aren’t in the succession estate because they are not in the will and
do not form part of the succession estate or there is no will and they do not form part of the
succession estate e.g. share of JT property.
Example assets forming the succession estate:
- Flat owned as TinC = Value of the amount the deceased held e.g. £150k flat and they have 1/3 share,
£50k value. Make sure to calculate this.
- Lump sum from pension scheme payable on death to PRs.
- Life assurance policy payable to the estate.
Some assets are excluded from the succession estate and are distributed in line with their own specific
rules: Still in the taxable estate.
- Property held as JTs: When calculating the succession estate only then don’t include the deceased’s
half of JT assets as they are not part of the succession estate – but will be part of the taxable estate.
Passes to the remaining JTs instantly on death, law of survivorship. Add this in when calculating what
they will receive from the d on the whole – but only in respect of the d’s share – as they still receive it
just not as part of the succession estate.
Would include a house and a joint bank account.
- Insurance policies written in trust:
Life assurance lump sum paid on death inherited by specified beneficiaries when they present the
death certificate and in accordance with the terms set out by the deceased, if the policy has been
written in trust. Add this in when calculating what the specified beneficiary will receive from the d.
- Pension benefits:
Terms of a pension scheme oblige the pension fund trustees to pay out a lump sum on death to the
nominated beneficiary when they present the death certificate. Add this in when calculating what the
specified beneficiary will receive from the d.
- Statutory nominations in writing to transfer ownership on death of sums of money held in certain
friendly society banks:
Nominated beneficiary receives the money – limited to £5k. Add this in when calculating what the
specified beneficiary will receive from the d.
- DMC:
Gift made during donor’s lifetime in contemplation of and conditional upon their death. They can
recover the asset before they die if they change their mind. Add this in when calculating what the
specified beneficiary will receive from the d.
- Trusts/settlements:
The deed that created the trust will control where the trust property goes.
Example: Life Interest Trust where the Life Tenant has a Life Interest and receives income from the
trust during their lifetime, Remainderman receives the trust fund on termination of the Life Tenant’s
interest (when they die), and this is the Remainder/Reversionary Interest. Add this in when calculating
what the specified beneficiary will receive from the d. Example: Andrew was the life tenant of his
father’s will trust and died, Andrew’s daughter Sandra is the remainderman so she receives the fund
under the terms of the trust deed.
Intestacy:
1
, If a person dies wholly/partially intestate, their succession estate/part of it is distributed in accordance
with the intestacy rules.
Entitled to the succession estate under the intestacy rules: Flow chart page 16
- If the d had a spouse/CP and/or issue:
Issue = Children (inc adopted) or remoter linear descendants.
Spouse/CP = Must survive the intestate by at least 28 days. Otherwise treated as not one.
o If the d had a spouse/CP (surviving at least 28 days) and issue:
Spouse receives: Check if married.
1. Personal chattels: work out what these are by looking at the items in the succession estate
and then take away their value from the net value of the succession estate
= Tangible moveable property. Therefore, does not include properties.
Chattels does not include: cash, assets used at the date of the death for solely/mainly
business purposes and assets held at the date of death solely as investment.
If some personal use but asset could increase in value = Personal chattel.
2. Statutory legacy of £270k. May not be the full amount depending on the value of the estate.
3. ½ of residue (balance of the succession estate after chattels and statutory legacy deducted)
May be nothing left and then nothing goes to issue.
Issue receives:
Other ½ of residue on the statutory trusts.
o If the d did not have issue: o If the d did not have a spouse/CP:
Spouse/CP receives everything. Issue receives everything on the statutory trusts.
- If the d did not have a spouse nor issue/spouse does not survive 28 days:
= Statutory order of entitlement applies to the succession estate:
1. Parents, but if none
2. Siblings of whole blood on the statutory trusts or their issue if pre-deceased, but if none
3. Siblings of half blood on the statutory trusts or their issue if pre-deceased, but if none
4. Grandparents, but if none
5. Uncles and aunts of whole blood on the statutory trusts, but if none
6. Crown as bona vacantia
Shared equally between all members of a class of beneficiaries.
Terms of the statutory trusts:
(a) An equal share of the estate is held for any children/child of the intestate who survive the intestate
and reach 18 or marry earlier to inherit.
Until then, the beneficiary has a contingent interest.
If the beneficiary is 18+ or married when the testator dies, they inherit straightaway and they have a
vested interest.
AND
(b) If an entitled beneficiary dies before the intestate, their children can inherit when 18/marry.
Children have a contingent interest until they are married or turn 18.
Surviving spouse’s right to appropriate the family home:
Intestate’s spouse has a right to have the family home appropriated to them.
- Must be exercised within 12 months of the grant of representation.
- If exercised, the PRs use their powers under s41 AEA to effect the appropriation.
- Family home need to be part of the succession estate i.e. owned solely by the deceased or held as
TinCs. Won’t apply if held as beneficial JTs because then the property does not form part of the
succession estate.
- If the spouse’s entitlement under the estate is worth less than the value of the property, the spouse
needs to pay the PRs the difference out of their own funds. It is not an additional gift.
Wills:
2
, For a will to be valid:
- Testator must be over 18 and must have capacity to make a will:
BANKS V GOODFELLOW: Soundness of mind, memory and understanding. Must understand:
1. Nature of his act and its broad effect
2. Extent of his property
3. Moral claims he ought to consider.
Must have the testamentary capacity at the time the will is executed.
PARKER V FELGATE: Exception, where the testator lacks capacity at the date of the execution of the
will, it is sufficient if:
a. They had capacity when giving instructions on the will and
b. The will is prepared in accordance with those instructions and
c. At the time of executing the will the testator understands he is executing a will for which he gave
instructions
If the will appears rational = testamentary capacity is presumed.
However, if evidence is produced to cause doubt over capacity, then the onus of proof is on those
seeking to have the will confirmed as valid to show that testamentary capacity was present.
- Must have the requisite intention:
1. General intention to make a will.
2. Specific intention to make the particular will they are signing; knowledge and approval of the
contents of the will they are executing.
Presumption that the intention exists where a testator with testamentary capacity executes a will.
Can be rebutted if there are circumstances suggesting lack of intention.
- All requirements of s9 Wills Act 1837 must be complied with:
1. In writing
2. Signed by the testator/some other person in the testator’s presence and by their direction
3. It appears that the testator by his signature intended to give effect to the will.
4. 2 or more witnesses of the testator’s signature and they attest and sign in the presence of the
testator. Only testator needs to be present when the witnesses sign, not the other witness.
Witnesses:
o Should be an adult
o Should be capable of attesting the testator’s signature; physically and mentally present.
o If a beneficiary of a will or their spouse acts as the witness, the beneficiary cannot inherit
under s15. Unless the will is subsequently confirmed by a duly executed codicil, then the will
is properly executed without their signature anyway. Any gift to the
witness-beneficiary/spouse fails. But if there gifts passing to them outside of the will, then
these can still take effect even though the beneficiary witnessed the will e.g. JT property
share.
Concluding clauses:
- Attestation clause:
= Explains the circumstances in which the will is executed.
Must state that the formalities under s9 have been complied with – then presumption of due
execution arises.
Can be valid w/o an attestation clause as long as s9 is followed but proof of this would be required
before the will can be admitted to probate e.g. affidavits of due execution sworn by witnesses.
Any special circumstances under which the will was drafted should be explained at the attestation
clause.
- Date:
Inclusion of a date allows the Probate Registry to ascertain the last will of the testator.
Can be a separate clause at the start, part of the commencement or revocation clause or at the end as
part of the attestation clause.
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Died testate or intestate:
Died testate = Deceased made a valid will. Died intestate = Deceased did not make a valid will.
Terms of the will determine who inherits AEA 1925 as amended by ITPA 2014 (the intestacy rules)
the succession estate. apply to determine who inherits the succession estate and
Succession estate either way. what each beneficiary receives.
Died partially intestate = Deceased made valid will, but the terms do not dispose all the succession estate.
Will followed but any remaining succession estate property passes in accordance with the intestacy rules.
Assets to pass:
Succession estate/distribution estate = Assets capable of passing under the will or by intestacy.
- Passes to the PR, who is legally responsible for administering the estate.
- PR pays the deceased’s debts, funeral and other expenses.
- Remaining assets then distributed according to order of priority under the intestacy rules or terms of
the will. There may be assets that aren’t in the succession estate because they are not in the will and
do not form part of the succession estate or there is no will and they do not form part of the
succession estate e.g. share of JT property.
Example assets forming the succession estate:
- Flat owned as TinC = Value of the amount the deceased held e.g. £150k flat and they have 1/3 share,
£50k value. Make sure to calculate this.
- Lump sum from pension scheme payable on death to PRs.
- Life assurance policy payable to the estate.
Some assets are excluded from the succession estate and are distributed in line with their own specific
rules: Still in the taxable estate.
- Property held as JTs: When calculating the succession estate only then don’t include the deceased’s
half of JT assets as they are not part of the succession estate – but will be part of the taxable estate.
Passes to the remaining JTs instantly on death, law of survivorship. Add this in when calculating what
they will receive from the d on the whole – but only in respect of the d’s share – as they still receive it
just not as part of the succession estate.
Would include a house and a joint bank account.
- Insurance policies written in trust:
Life assurance lump sum paid on death inherited by specified beneficiaries when they present the
death certificate and in accordance with the terms set out by the deceased, if the policy has been
written in trust. Add this in when calculating what the specified beneficiary will receive from the d.
- Pension benefits:
Terms of a pension scheme oblige the pension fund trustees to pay out a lump sum on death to the
nominated beneficiary when they present the death certificate. Add this in when calculating what the
specified beneficiary will receive from the d.
- Statutory nominations in writing to transfer ownership on death of sums of money held in certain
friendly society banks:
Nominated beneficiary receives the money – limited to £5k. Add this in when calculating what the
specified beneficiary will receive from the d.
- DMC:
Gift made during donor’s lifetime in contemplation of and conditional upon their death. They can
recover the asset before they die if they change their mind. Add this in when calculating what the
specified beneficiary will receive from the d.
- Trusts/settlements:
The deed that created the trust will control where the trust property goes.
Example: Life Interest Trust where the Life Tenant has a Life Interest and receives income from the
trust during their lifetime, Remainderman receives the trust fund on termination of the Life Tenant’s
interest (when they die), and this is the Remainder/Reversionary Interest. Add this in when calculating
what the specified beneficiary will receive from the d. Example: Andrew was the life tenant of his
father’s will trust and died, Andrew’s daughter Sandra is the remainderman so she receives the fund
under the terms of the trust deed.
Intestacy:
1
, If a person dies wholly/partially intestate, their succession estate/part of it is distributed in accordance
with the intestacy rules.
Entitled to the succession estate under the intestacy rules: Flow chart page 16
- If the d had a spouse/CP and/or issue:
Issue = Children (inc adopted) or remoter linear descendants.
Spouse/CP = Must survive the intestate by at least 28 days. Otherwise treated as not one.
o If the d had a spouse/CP (surviving at least 28 days) and issue:
Spouse receives: Check if married.
1. Personal chattels: work out what these are by looking at the items in the succession estate
and then take away their value from the net value of the succession estate
= Tangible moveable property. Therefore, does not include properties.
Chattels does not include: cash, assets used at the date of the death for solely/mainly
business purposes and assets held at the date of death solely as investment.
If some personal use but asset could increase in value = Personal chattel.
2. Statutory legacy of £270k. May not be the full amount depending on the value of the estate.
3. ½ of residue (balance of the succession estate after chattels and statutory legacy deducted)
May be nothing left and then nothing goes to issue.
Issue receives:
Other ½ of residue on the statutory trusts.
o If the d did not have issue: o If the d did not have a spouse/CP:
Spouse/CP receives everything. Issue receives everything on the statutory trusts.
- If the d did not have a spouse nor issue/spouse does not survive 28 days:
= Statutory order of entitlement applies to the succession estate:
1. Parents, but if none
2. Siblings of whole blood on the statutory trusts or their issue if pre-deceased, but if none
3. Siblings of half blood on the statutory trusts or their issue if pre-deceased, but if none
4. Grandparents, but if none
5. Uncles and aunts of whole blood on the statutory trusts, but if none
6. Crown as bona vacantia
Shared equally between all members of a class of beneficiaries.
Terms of the statutory trusts:
(a) An equal share of the estate is held for any children/child of the intestate who survive the intestate
and reach 18 or marry earlier to inherit.
Until then, the beneficiary has a contingent interest.
If the beneficiary is 18+ or married when the testator dies, they inherit straightaway and they have a
vested interest.
AND
(b) If an entitled beneficiary dies before the intestate, their children can inherit when 18/marry.
Children have a contingent interest until they are married or turn 18.
Surviving spouse’s right to appropriate the family home:
Intestate’s spouse has a right to have the family home appropriated to them.
- Must be exercised within 12 months of the grant of representation.
- If exercised, the PRs use their powers under s41 AEA to effect the appropriation.
- Family home need to be part of the succession estate i.e. owned solely by the deceased or held as
TinCs. Won’t apply if held as beneficial JTs because then the property does not form part of the
succession estate.
- If the spouse’s entitlement under the estate is worth less than the value of the property, the spouse
needs to pay the PRs the difference out of their own funds. It is not an additional gift.
Wills:
2
, For a will to be valid:
- Testator must be over 18 and must have capacity to make a will:
BANKS V GOODFELLOW: Soundness of mind, memory and understanding. Must understand:
1. Nature of his act and its broad effect
2. Extent of his property
3. Moral claims he ought to consider.
Must have the testamentary capacity at the time the will is executed.
PARKER V FELGATE: Exception, where the testator lacks capacity at the date of the execution of the
will, it is sufficient if:
a. They had capacity when giving instructions on the will and
b. The will is prepared in accordance with those instructions and
c. At the time of executing the will the testator understands he is executing a will for which he gave
instructions
If the will appears rational = testamentary capacity is presumed.
However, if evidence is produced to cause doubt over capacity, then the onus of proof is on those
seeking to have the will confirmed as valid to show that testamentary capacity was present.
- Must have the requisite intention:
1. General intention to make a will.
2. Specific intention to make the particular will they are signing; knowledge and approval of the
contents of the will they are executing.
Presumption that the intention exists where a testator with testamentary capacity executes a will.
Can be rebutted if there are circumstances suggesting lack of intention.
- All requirements of s9 Wills Act 1837 must be complied with:
1. In writing
2. Signed by the testator/some other person in the testator’s presence and by their direction
3. It appears that the testator by his signature intended to give effect to the will.
4. 2 or more witnesses of the testator’s signature and they attest and sign in the presence of the
testator. Only testator needs to be present when the witnesses sign, not the other witness.
Witnesses:
o Should be an adult
o Should be capable of attesting the testator’s signature; physically and mentally present.
o If a beneficiary of a will or their spouse acts as the witness, the beneficiary cannot inherit
under s15. Unless the will is subsequently confirmed by a duly executed codicil, then the will
is properly executed without their signature anyway. Any gift to the
witness-beneficiary/spouse fails. But if there gifts passing to them outside of the will, then
these can still take effect even though the beneficiary witnessed the will e.g. JT property
share.
Concluding clauses:
- Attestation clause:
= Explains the circumstances in which the will is executed.
Must state that the formalities under s9 have been complied with – then presumption of due
execution arises.
Can be valid w/o an attestation clause as long as s9 is followed but proof of this would be required
before the will can be admitted to probate e.g. affidavits of due execution sworn by witnesses.
Any special circumstances under which the will was drafted should be explained at the attestation
clause.
- Date:
Inclusion of a date allows the Probate Registry to ascertain the last will of the testator.
Can be a separate clause at the start, part of the commencement or revocation clause or at the end as
part of the attestation clause.
3
