Wills & Administration of Estates Revision Notes
Intestacy
Intestacy – Where a person dies without making a valid will.
Partial Intestacy – Where a will does not cover the entire estate of a deceased person.
Intestacy Rules
Entitlement – If the deceased is survived by a spouse / civil partner (by at least 28 days) and / or an issue, they
are the only entitled classes.
Issue – Children and remoter linear descendants, including those who are legitimate, illegitimate,
legitimated, adopted, and conceived but not born at the date of death.
Spouse, No Issue –The spouse inherits the succession estate absolutely.
Issue, No Spouse – The issue inherits the entire succession estate on the statutory trusts.
Spouse & Issue – If the intestate leaves a spouse and issue, they are entitled to:
o Spouse – Personal chattels absolutely, statutory legacy of £322,000 free of tax and costs plus interest
from the date of death to date of payment, and half of the residue (if any) absolutely.
o Issue – The other half of the residue (if any) on statutory trust.
Substitution – If an issue does not survive the intestate, their issue may inherit their entitlement.
Contingency – An issue need not survive the intestate by 28 days but must survive the intestate and reach the
age of 18. Until this point, any interest is contingent.
No Spouse or Issue – Where an intestate dies without a spouse or issue, the order of entitlement is as follows:
a) parents;
b) siblings of whole blood on statutory trusts;
c) siblings of half-blood on statutory trusts;
d) grandparents;
e) uncles and aunts of whole blood
f) uncles and aunts of half-blood; and
g) the Crown as bona vacantia
Multiple Entitlement – Where multiple persons in the same category are entitled, the succession estate is
divided equally.
Distribution of Assets
Personal Chattel – Tangible moveable property excluding money or securities for money, property used at death
solely or mainly for business purposes, or property held at death solely as an investment.
Appropriation – Where a martial home is held as joint tenants in common, the spouse may appropriate the
martial home in full or partial satisfaction of their entitlement.
Requirements – The spouse must make an election in writing within 12 months of the date of the grant.
Until then, the PR cannot sell the marital home without the spouse’s consent.
Lower Entitlement – Where a spouse’s entitlement is lower than the value they are appropriating, they
must pay the difference from the personal funds.
Valuation – The martial home is valued as at the date of appropriation.
Consent – The leave of the court is required where the martial home is only part of a building owned by the
deceased or where the home is part of a farm or other business premises.
Excluded Property
DMC – A gift made in contemplation of death will not form part of the succession estate.
Discretionary Pension Scheme Benefits – Where the deceased was a member of a discretionary pension
scheme, payments made will not form part of the succession estate.
Expression of Wish Form – This nominates a third party to receive any benefits due after their death. Such
instructions are not binding on the trustees.
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, Release – The benefit will be released upon the production of a death certificate.
Insurance Policy – The proceeds of a simple life insurance policy will pass. The benefits of a policy written in trust
will not. The proceeds belong to the nominated beneficiary and vest on the death of the insured.
Release – The benefit will be released upon the production of a death certificate.
Statutory Nominations – A person can make a nomination not exceeding £5,000, in a Friendly Society, Industrial
Society, or Provident Society account.
Release – The monies in the relevant account(s) pass to the nominee and the benefit of the nominated
account will be released upon the production of a death certificate.
Joint Tenancy – Any assets held under joint tenancy will pass by survivorship. Whether the family home or co-
owned bank accounts is based on an assessment of legal and beneficial ownership.
Life & Remainder Interests – A life interest does not form part of a succession estate as it expires on death. A
remainder interest will pass if vested and will be held for the life tenant for life, remainder those entitled. If not,
the interest will lapse.
Power of Appointment – If the deceased possessed a power of appointment under a trust, they may exercise
this by will.
Wills
Validity
Testamentary Capacity (Banks v Goodfellow)
Elements – 1) Understand Nature of Act 3) Appreciate Extent of Property 3) Understand and Appreciate Moral
Claims 4) No Mental Disorder.
Nature of Act – A testator need only understand the broad effects of a will, not every detail.
Extent of Property – A testator should have a general recollection of what they own and appreciate the
approximate value of their estate.
Moral Claim – A testator should be able to appreciate anyone to whom they owe a moral responsibility.
Mental Disorder – A testator suffering from insane delusions, affecting their judgement generally or in
relation to specific dispositions, lacks testamentary capacity unless the delusion is unconnected with and
has no effect on the terms of the will.
Statutory Wills – The court may to authorise the execution of a will on behalf of an adult who lacks capacity if
persuaded there are grounds to diverge from the existing testamentary position and that it is in the person’s best
interests to do so.
Timing
Requirement – A testator must have testamentary capacity at the time the will is executed unless they:
o had testamentary capacity at the time they gave instructions;
o the will was prepared in accordance with those instructions; and
o at the time of execution, the testator understood they were signing a will for which they had previously
given instructions.
Fluctuating Capacity – A testator may have fluctuating capacity. It is possible to have intermittent capacity where
Banks v Goodfellow can be satisfied at some times but not others.
Temporary Incapacity – A testator may temporarily lack capacity as a consequence of a particular life event
having an effect on one’s mental state. Depression and other mental health conditions may have such an
effect.
Golden Rule – When taking instructions from an elderly or seriously ill client, a medical practitioner should be
instructed to make an assessment of the testator’s capacity, and a contemporaneous record of the assessment.
Non-compliance with the Golden Rule does not automatically demonstrate poor practice.
Attendance Note – A contemporaneous note recording a solicitor’s view that a testator has capacity is
strong evidence of capacity.
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, Presumption – Capacity is presumed if the will, on the face of it, appears rational and has been duly executed.
This is rebutted if someone challenges validity on the grounds of lack of capacity and adduces evidence sufficient
to raise doubt. If so, it is on the propounder (PR) to prove capacity.
Knowledge & Approval
Requirement – A testator must have a general intention to make a testamentary document which disposes of
their property and should take effect following their death and must have a specific intention to make the
particular will they sign.
Presumption – If a testator has testamentary capacity, knowledge and approval are presumed unless (a) the
testator is blind or illiterate, (b) the will was signed by someone on behalf of the testator, or (c) there are
suspicious circumstances. If challenged, it is on the propounder (PR) to prove knowledge and approval.
Duress & Undue Influence – Where a will was made as a result of undue influence or duress, it will be invalid
either wholly or partly depending on the extent of the duress or undue influence. The court cannot add or
substitute words.
Undue Influence – Where a testator is coerced into making a will, or including particular terms, against their
judgement and contrary to their true intention.
Extent & Assessment – Undue influence goes beyond persuasion. It is not unlawful to encourage someone
to make a will or persuade to include certain provisions. There is no presumption of undue influence.
Considerations – The physical and mental strength of the testator are relevant when determining how much
pressure would be necessary to overbear the will.
Formal Requirement
Requirements – 1) In Writing 2) Signed by T or Another at T’s Direction 3) Made or Acknowledged 4) Attested or
Acknowledged.
Signature – Any mark may constitute a signature . It is preferable for a testator to use their normal
signature. For someone to sign on the testator’s behalf, the testator must have authorised them to sign.
Intention to give Effect – Where the signature is at the end of a will, it indicates the necessary
intention.
Made or Acknowledged – A testator must sign in person or acknowledge the signature of the person who
signed on their behalf. There must be at least two witnesses. Witnesses must be physically and mentally
present but do not need to know that a will is being signed or its terms.
Excluded Persons – A witness cannot be a minor, someone who is blind, drunk or, of unsound mind.
Procedure – The full name, addresses, and occupation of each witness should be noted in the will.
Attested or Acknowledged – Both witnesses must sign the will in front of the testator. It is not necessary for
each witness to also sign in front of each other.
Attestation Clause – Where a properly drafted attestation clause is included, there is a presumption of due
execution. If not, an affidavit may be required to prove proper attestation.
Incorporation, Amendment, Revocation & Construction
Incorporation
Requirements – To incorporate an unexecuted document into a will:
o the document must exist when the will is executed, or codicil is made;
o the will must refer to the document as being in existence at the time of execution; and
o the document must be clearly identified in the will.
Effect – A validly incorporated document becomes part of the will and will be made public once the will is
admitted to probate.
STEP Provision – STEP provisions can be incorporated into a will or trust deed by reference.
Letter of Wishes – A letter that is drafted by the testator and stored with the will. A letter of wishes is not legally
binding.
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Intestacy
Intestacy – Where a person dies without making a valid will.
Partial Intestacy – Where a will does not cover the entire estate of a deceased person.
Intestacy Rules
Entitlement – If the deceased is survived by a spouse / civil partner (by at least 28 days) and / or an issue, they
are the only entitled classes.
Issue – Children and remoter linear descendants, including those who are legitimate, illegitimate,
legitimated, adopted, and conceived but not born at the date of death.
Spouse, No Issue –The spouse inherits the succession estate absolutely.
Issue, No Spouse – The issue inherits the entire succession estate on the statutory trusts.
Spouse & Issue – If the intestate leaves a spouse and issue, they are entitled to:
o Spouse – Personal chattels absolutely, statutory legacy of £322,000 free of tax and costs plus interest
from the date of death to date of payment, and half of the residue (if any) absolutely.
o Issue – The other half of the residue (if any) on statutory trust.
Substitution – If an issue does not survive the intestate, their issue may inherit their entitlement.
Contingency – An issue need not survive the intestate by 28 days but must survive the intestate and reach the
age of 18. Until this point, any interest is contingent.
No Spouse or Issue – Where an intestate dies without a spouse or issue, the order of entitlement is as follows:
a) parents;
b) siblings of whole blood on statutory trusts;
c) siblings of half-blood on statutory trusts;
d) grandparents;
e) uncles and aunts of whole blood
f) uncles and aunts of half-blood; and
g) the Crown as bona vacantia
Multiple Entitlement – Where multiple persons in the same category are entitled, the succession estate is
divided equally.
Distribution of Assets
Personal Chattel – Tangible moveable property excluding money or securities for money, property used at death
solely or mainly for business purposes, or property held at death solely as an investment.
Appropriation – Where a martial home is held as joint tenants in common, the spouse may appropriate the
martial home in full or partial satisfaction of their entitlement.
Requirements – The spouse must make an election in writing within 12 months of the date of the grant.
Until then, the PR cannot sell the marital home without the spouse’s consent.
Lower Entitlement – Where a spouse’s entitlement is lower than the value they are appropriating, they
must pay the difference from the personal funds.
Valuation – The martial home is valued as at the date of appropriation.
Consent – The leave of the court is required where the martial home is only part of a building owned by the
deceased or where the home is part of a farm or other business premises.
Excluded Property
DMC – A gift made in contemplation of death will not form part of the succession estate.
Discretionary Pension Scheme Benefits – Where the deceased was a member of a discretionary pension
scheme, payments made will not form part of the succession estate.
Expression of Wish Form – This nominates a third party to receive any benefits due after their death. Such
instructions are not binding on the trustees.
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, Release – The benefit will be released upon the production of a death certificate.
Insurance Policy – The proceeds of a simple life insurance policy will pass. The benefits of a policy written in trust
will not. The proceeds belong to the nominated beneficiary and vest on the death of the insured.
Release – The benefit will be released upon the production of a death certificate.
Statutory Nominations – A person can make a nomination not exceeding £5,000, in a Friendly Society, Industrial
Society, or Provident Society account.
Release – The monies in the relevant account(s) pass to the nominee and the benefit of the nominated
account will be released upon the production of a death certificate.
Joint Tenancy – Any assets held under joint tenancy will pass by survivorship. Whether the family home or co-
owned bank accounts is based on an assessment of legal and beneficial ownership.
Life & Remainder Interests – A life interest does not form part of a succession estate as it expires on death. A
remainder interest will pass if vested and will be held for the life tenant for life, remainder those entitled. If not,
the interest will lapse.
Power of Appointment – If the deceased possessed a power of appointment under a trust, they may exercise
this by will.
Wills
Validity
Testamentary Capacity (Banks v Goodfellow)
Elements – 1) Understand Nature of Act 3) Appreciate Extent of Property 3) Understand and Appreciate Moral
Claims 4) No Mental Disorder.
Nature of Act – A testator need only understand the broad effects of a will, not every detail.
Extent of Property – A testator should have a general recollection of what they own and appreciate the
approximate value of their estate.
Moral Claim – A testator should be able to appreciate anyone to whom they owe a moral responsibility.
Mental Disorder – A testator suffering from insane delusions, affecting their judgement generally or in
relation to specific dispositions, lacks testamentary capacity unless the delusion is unconnected with and
has no effect on the terms of the will.
Statutory Wills – The court may to authorise the execution of a will on behalf of an adult who lacks capacity if
persuaded there are grounds to diverge from the existing testamentary position and that it is in the person’s best
interests to do so.
Timing
Requirement – A testator must have testamentary capacity at the time the will is executed unless they:
o had testamentary capacity at the time they gave instructions;
o the will was prepared in accordance with those instructions; and
o at the time of execution, the testator understood they were signing a will for which they had previously
given instructions.
Fluctuating Capacity – A testator may have fluctuating capacity. It is possible to have intermittent capacity where
Banks v Goodfellow can be satisfied at some times but not others.
Temporary Incapacity – A testator may temporarily lack capacity as a consequence of a particular life event
having an effect on one’s mental state. Depression and other mental health conditions may have such an
effect.
Golden Rule – When taking instructions from an elderly or seriously ill client, a medical practitioner should be
instructed to make an assessment of the testator’s capacity, and a contemporaneous record of the assessment.
Non-compliance with the Golden Rule does not automatically demonstrate poor practice.
Attendance Note – A contemporaneous note recording a solicitor’s view that a testator has capacity is
strong evidence of capacity.
2
, Presumption – Capacity is presumed if the will, on the face of it, appears rational and has been duly executed.
This is rebutted if someone challenges validity on the grounds of lack of capacity and adduces evidence sufficient
to raise doubt. If so, it is on the propounder (PR) to prove capacity.
Knowledge & Approval
Requirement – A testator must have a general intention to make a testamentary document which disposes of
their property and should take effect following their death and must have a specific intention to make the
particular will they sign.
Presumption – If a testator has testamentary capacity, knowledge and approval are presumed unless (a) the
testator is blind or illiterate, (b) the will was signed by someone on behalf of the testator, or (c) there are
suspicious circumstances. If challenged, it is on the propounder (PR) to prove knowledge and approval.
Duress & Undue Influence – Where a will was made as a result of undue influence or duress, it will be invalid
either wholly or partly depending on the extent of the duress or undue influence. The court cannot add or
substitute words.
Undue Influence – Where a testator is coerced into making a will, or including particular terms, against their
judgement and contrary to their true intention.
Extent & Assessment – Undue influence goes beyond persuasion. It is not unlawful to encourage someone
to make a will or persuade to include certain provisions. There is no presumption of undue influence.
Considerations – The physical and mental strength of the testator are relevant when determining how much
pressure would be necessary to overbear the will.
Formal Requirement
Requirements – 1) In Writing 2) Signed by T or Another at T’s Direction 3) Made or Acknowledged 4) Attested or
Acknowledged.
Signature – Any mark may constitute a signature . It is preferable for a testator to use their normal
signature. For someone to sign on the testator’s behalf, the testator must have authorised them to sign.
Intention to give Effect – Where the signature is at the end of a will, it indicates the necessary
intention.
Made or Acknowledged – A testator must sign in person or acknowledge the signature of the person who
signed on their behalf. There must be at least two witnesses. Witnesses must be physically and mentally
present but do not need to know that a will is being signed or its terms.
Excluded Persons – A witness cannot be a minor, someone who is blind, drunk or, of unsound mind.
Procedure – The full name, addresses, and occupation of each witness should be noted in the will.
Attested or Acknowledged – Both witnesses must sign the will in front of the testator. It is not necessary for
each witness to also sign in front of each other.
Attestation Clause – Where a properly drafted attestation clause is included, there is a presumption of due
execution. If not, an affidavit may be required to prove proper attestation.
Incorporation, Amendment, Revocation & Construction
Incorporation
Requirements – To incorporate an unexecuted document into a will:
o the document must exist when the will is executed, or codicil is made;
o the will must refer to the document as being in existence at the time of execution; and
o the document must be clearly identified in the will.
Effect – A validly incorporated document becomes part of the will and will be made public once the will is
admitted to probate.
STEP Provision – STEP provisions can be incorporated into a will or trust deed by reference.
Letter of Wishes – A letter that is drafted by the testator and stored with the will. A letter of wishes is not legally
binding.
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