, Wills and Estates:
Unit 1: Validity of Wills and Estates
After a person’s death, a 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 passing on intestacy
Property outside Wills:
A number of different kinds of property pass independently of the terms of any wills / intestacy
rules:
1) Joint Property →
● Where property is held by more than one person as beneficial joint tenants, on
the death of one joint tenant, their interest passes by survivorship
2) Insurance policies →
● Where a person takes out a life assurance policy and writes it in trust for the
benefit of specified individuals / is assigned to named beneficiaries → the benefit
no longer belongs to the policy holder
● On the policy holder’s death, the policy matures and the insurance company will
pay the proceeds to the named beneficiaries
3) Pension benefits →
● Many pension schemes provide for the payment of benefits if an employee dies
‘in service’
● A lump sum is paid by the trustees of the pension fund to members of the family /
dependents (chosen at the trustees’ discretion)
4) Trust property →
● Many equitable interests come to an end on the beneficiary's death → the trust
property will devolve according to the terms of the trust
, Gifts:
1) Specific gift → gift of specific items which the testator owns, which is distinguished
from the rest of their assets
2) General gift → gift of an item corresponding to a description (if the testator does not
own the item at death, the executors must obtain the item using funds from the estate)
3) Demonstrative gift → gift that is general in nature, but is directed to be paid from a
specific fund
4) Pecuniary gift → gift of money
5) Residuary gift → comprises all the money and property left after the testator’s debts, the
expenses of dealing with the estate and once other gifts have been paid
Requirements for a valid will:
Capacity:
● An individual must be aged 18 or over and must have the requisite mental capacity
(‘soundness of mind, memory and understanding)
● Testators must understand:
a) The nature of their act and its broad effects
b) The extent of their property
c) The moral claims they ought to consider
● General rule = testators must have capacity at the time they execute their wills
○ Mental Capacity Act → statutory test to determine whether a person has capacity
to take a decision
○ A solicitor preparing a will for a testator whose mental state is in doubt should
follow the golden rule
, - Should ask a medical practitioner to provide a written report confirming
that the testator has testamentary capacity and for a Dr to witness the will
○ Exception = can be valid if the testator has the capacity when they give
instructions, even if they lose capacity by the time it is executed (rare)
- Instructions must be given to a solicitor and at the time of execution, the
testator must appreciate they are signing a will prepared in accordance
with their previous instructions
● The person who is asserting that a will is valid has the burden of proof
- Can rely on the presumption of capacity → if the will is rational on its face and
the testator showed no evidence of mental confusion before making the will
Intention:
When the will is signed, the testator must have both general and specific intention
● The testator must intend to make a will and must intend to make that particular one
being executed
Presumption of Knowledge and Approval:
Presumption of knowledge and approval arises → a testator who has capacity and has read and
executed the will → presumed to have the requisite knowledge and approval.
Doesn’t apply if:
a. If the testator was blind / illiterate / someone else signed on their behalf
- HMCTS will require evidence to prove knowledge and approval before they will
issue a grant of probate
b. If there a suspicious circumstances surrounding the drafting / execution of the will
c. If all or part of the will was included by mistake
Unit 1: Validity of Wills and Estates
After a person’s death, a 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 passing on intestacy
Property outside Wills:
A number of different kinds of property pass independently of the terms of any wills / intestacy
rules:
1) Joint Property →
● Where property is held by more than one person as beneficial joint tenants, on
the death of one joint tenant, their interest passes by survivorship
2) Insurance policies →
● Where a person takes out a life assurance policy and writes it in trust for the
benefit of specified individuals / is assigned to named beneficiaries → the benefit
no longer belongs to the policy holder
● On the policy holder’s death, the policy matures and the insurance company will
pay the proceeds to the named beneficiaries
3) Pension benefits →
● Many pension schemes provide for the payment of benefits if an employee dies
‘in service’
● A lump sum is paid by the trustees of the pension fund to members of the family /
dependents (chosen at the trustees’ discretion)
4) Trust property →
● Many equitable interests come to an end on the beneficiary's death → the trust
property will devolve according to the terms of the trust
, Gifts:
1) Specific gift → gift of specific items which the testator owns, which is distinguished
from the rest of their assets
2) General gift → gift of an item corresponding to a description (if the testator does not
own the item at death, the executors must obtain the item using funds from the estate)
3) Demonstrative gift → gift that is general in nature, but is directed to be paid from a
specific fund
4) Pecuniary gift → gift of money
5) Residuary gift → comprises all the money and property left after the testator’s debts, the
expenses of dealing with the estate and once other gifts have been paid
Requirements for a valid will:
Capacity:
● An individual must be aged 18 or over and must have the requisite mental capacity
(‘soundness of mind, memory and understanding)
● Testators must understand:
a) The nature of their act and its broad effects
b) The extent of their property
c) The moral claims they ought to consider
● General rule = testators must have capacity at the time they execute their wills
○ Mental Capacity Act → statutory test to determine whether a person has capacity
to take a decision
○ A solicitor preparing a will for a testator whose mental state is in doubt should
follow the golden rule
, - Should ask a medical practitioner to provide a written report confirming
that the testator has testamentary capacity and for a Dr to witness the will
○ Exception = can be valid if the testator has the capacity when they give
instructions, even if they lose capacity by the time it is executed (rare)
- Instructions must be given to a solicitor and at the time of execution, the
testator must appreciate they are signing a will prepared in accordance
with their previous instructions
● The person who is asserting that a will is valid has the burden of proof
- Can rely on the presumption of capacity → if the will is rational on its face and
the testator showed no evidence of mental confusion before making the will
Intention:
When the will is signed, the testator must have both general and specific intention
● The testator must intend to make a will and must intend to make that particular one
being executed
Presumption of Knowledge and Approval:
Presumption of knowledge and approval arises → a testator who has capacity and has read and
executed the will → presumed to have the requisite knowledge and approval.
Doesn’t apply if:
a. If the testator was blind / illiterate / someone else signed on their behalf
- HMCTS will require evidence to prove knowledge and approval before they will
issue a grant of probate
b. If there a suspicious circumstances surrounding the drafting / execution of the will
c. If all or part of the will was included by mistake
