Wills FLK Summary
Contents
Validity of Wills 1
Intestacy 2
Passing of Gifts 3
Revocation and Alterations to the Will 4
Inheritance Tax 5
Grant of Representation 7
Administration 8
Family Provision and Post-Death Variations 10
Validity of Wills
Types of Property:
● Life insurance passes via wills/intestacy
● Pension passes independent from wills and intestacy
● Trust property passes based on the trust not a will
Gifts:
● Devise - gift of real property e.g. a house
● Legacy - personal property e.g. a watch
● Demonstrative gift - general gift but paid from a specific fund
● Pecuniary gift - gift of money
Valid will requirements:
● Capacity
● Intention
● S.9 Wills Act 1837 compliance
Capacity:
● 18+, of sound mind, memory and understanding at the time they execute the will
● Understands nature and effect of the will, extent of property and any moral
considerations
● Exception - if they had capacity when they instructed a solicitor and later lost capacity
● Presumption of capacity if will is rational on the face and showed no signs of lack of
capacity
● Golden rule - get a medical practitioner to provide a report on their testamentary capacity
and to witness the will
● Person alleging the will is valid has the burden of proving it, if someone challenges the
will - they have the burden to prove lack of capacity
Intention:
● Intend to make that particular will - know and approve of its contents at the time of
execution
● If will is executed there is a presumption of intention unless -
1
, ○ Blind/illiterate or someone signed the will on their behalf or suspicious
circumstances surrounding drafting and execution
● Would need to show:
○ Force or fear
○ Fraud
○ Undue influence
○ Mistake
Formalities s.9
● In writing and signed in presence of two witnesses or signed by someone in testator’s
presence and by their direction
● Signature intends to give will effect
● Witnesses must sign and attest the testator’s signature
● Anyone challenging execution of the will has the burden of proving it as there is a
presumption of due execution
Privileged will:
● S.11 Wills Act
○ If made during military service or mariner - exempt from requirements and the will
can just be an oral declaration
Intestacy
Scenarios:
● No will or has been revoked
● Will is invalid or is valid and does not dispose of estate
● Will is valid but there is no residuary gift
Entitlement:
● PRs distribute the will in accordance with s.46
Surviving spouse:
● Married at the time of death and must survive them by 28 days
● Receives personal chattels other than:
○ Money or security for money
○ Property used for solely business purposes
○ Investment
● If spouse and issue:
○ Statutory legacy of £322,000 tax free plus any interest from the date of death
○ If they want the home, can request this from the PRs within 12 months of grant
as satisfaction of their entitlement
○ Rest of the estate:
○ One half to the spouse
○ Other half held on trust for issue (children)
■ Must turn 18 or get married to have a vested interest
■ If they died before their parent but have a child, will go to them held on
trust until 18 or married
2
Contents
Validity of Wills 1
Intestacy 2
Passing of Gifts 3
Revocation and Alterations to the Will 4
Inheritance Tax 5
Grant of Representation 7
Administration 8
Family Provision and Post-Death Variations 10
Validity of Wills
Types of Property:
● Life insurance passes via wills/intestacy
● Pension passes independent from wills and intestacy
● Trust property passes based on the trust not a will
Gifts:
● Devise - gift of real property e.g. a house
● Legacy - personal property e.g. a watch
● Demonstrative gift - general gift but paid from a specific fund
● Pecuniary gift - gift of money
Valid will requirements:
● Capacity
● Intention
● S.9 Wills Act 1837 compliance
Capacity:
● 18+, of sound mind, memory and understanding at the time they execute the will
● Understands nature and effect of the will, extent of property and any moral
considerations
● Exception - if they had capacity when they instructed a solicitor and later lost capacity
● Presumption of capacity if will is rational on the face and showed no signs of lack of
capacity
● Golden rule - get a medical practitioner to provide a report on their testamentary capacity
and to witness the will
● Person alleging the will is valid has the burden of proving it, if someone challenges the
will - they have the burden to prove lack of capacity
Intention:
● Intend to make that particular will - know and approve of its contents at the time of
execution
● If will is executed there is a presumption of intention unless -
1
, ○ Blind/illiterate or someone signed the will on their behalf or suspicious
circumstances surrounding drafting and execution
● Would need to show:
○ Force or fear
○ Fraud
○ Undue influence
○ Mistake
Formalities s.9
● In writing and signed in presence of two witnesses or signed by someone in testator’s
presence and by their direction
● Signature intends to give will effect
● Witnesses must sign and attest the testator’s signature
● Anyone challenging execution of the will has the burden of proving it as there is a
presumption of due execution
Privileged will:
● S.11 Wills Act
○ If made during military service or mariner - exempt from requirements and the will
can just be an oral declaration
Intestacy
Scenarios:
● No will or has been revoked
● Will is invalid or is valid and does not dispose of estate
● Will is valid but there is no residuary gift
Entitlement:
● PRs distribute the will in accordance with s.46
Surviving spouse:
● Married at the time of death and must survive them by 28 days
● Receives personal chattels other than:
○ Money or security for money
○ Property used for solely business purposes
○ Investment
● If spouse and issue:
○ Statutory legacy of £322,000 tax free plus any interest from the date of death
○ If they want the home, can request this from the PRs within 12 months of grant
as satisfaction of their entitlement
○ Rest of the estate:
○ One half to the spouse
○ Other half held on trust for issue (children)
■ Must turn 18 or get married to have a vested interest
■ If they died before their parent but have a child, will go to them held on
trust until 18 or married
2
