CONTENTS
1. WILL DRAFTING
a. Failure of Gifts
b. Basic Contents of a Will
c. Will Trusts – Flexible Will Drafting
d. Precatory Trusts
e. Taxation of Precatory Trusts
f. Wills Containing Flexible Trusts
g. IHT Implications of Discretionary Trusts in Wills
h. CGT Implications of Discretionary Trusts in Wills
i. Income Tax Implications of Discretionary Trusts in Wills
j. Possible Inheritance Act claim by surviving spouse / Civil Partner
2. LASTING POWERS OF ATTORNEY
a. Test for capacity – Mental Capacity Act 2005
b. Lasting Power Of Attorney analysis
3. IHT & WILL DRAFTING
a. Lifetime Chargeable Transfers
4. ESTATE PLANNING
a. Transfers Between Spouses / Civil Partners
b. The Matrimonial Home
c. Transferring Assets (other than the matrimonial home) into joint ownership
d. Transferring Assets outright from one spouse or civil partner to the other
e. Transfers from parents to children / remoter issue
f. Capital Gains Tax
g. Post-death disclaimers and variations
h. Gifts into trust
i. Gifts with a reserved benefit – s102 and Sch 20 Finance Act 1986
j. The Family Home
k. Post-death arrangements
l. Post-death variations
m. The scope of the statutory provisions for variations and disclaimers
n. Income tax, tax avoidance and post-death arrangements
5. CREATION OF LIFETIME SETTLEMENTS
a. Settlements
b. IHT & settlements
c. Settlements and IHT planning
d. CGT and lifetime settlements
e. Income tax and settlements
f. Structure of settlement
6. LIFE INTEREST & DISCRETIONARY TRUSTS
a. Trust advances and appointments
b. Power of advancement
7. TRUST INCOME & TERMINATION OF TRUSTS
a. Trust Administration
b. Reporting information on Trusts
c. Duties and powers administering a trust
d. Trustee investments
e. Appointment of original trustees
f. Appointment of subsequent trustees
g. Vesting trust property in the trustees
h. Taxation during the administration of a settlement
i. Distributing the trust funds
8. WILLS: TRUSTS FOR YOUNG PEOPLE & LIFE INTEREST TRUSTS
a. Will Trusts
b. Special IHT treatment for certain settlements created on death
c. Accumulation & Perpetuity Periods
9. FLEXIBLE WILL DRAFTING
a. Precatory trusts
b. Wills containing flexible trusts
c. Drafting discretionary trusts of residue
d. Wills containing a terminable life interest
e. Inheritance Act claims by a surviving spouse / civil partner
f. IHT treatment of settlements created on death / after March 2006
10.
, WEEK 1- WILL DRAFTING
PROFESSIONAL Solicitors must comply with principles 4, 5 and 7 and act with honesty, integrity and in the best interests
CONDUCT of clients. Paragraph 3.1 SRA CoC for Solicitors requires: you do not act if there is an own interest
conflict or a significant risk of such a conflict.
CIVIL Civil Partnership Act 2004 (CPA) - partners who have registered a civil partnership are treated as
PARTNERS spouses for the purposes of succession to property.
Main amendments include:
Revocation by marriage / CP unless a will is made in expectation of marriage or CP
Gift in will to former spouse / CP lapses where divorce / dissolution of CP occurs
Gifts attested by spouse/civil partner are void;
Entitlement on intestacy including rights to take ‘matrimonial home’ in or toward satisfaction of
absolute entitlement on intestacy
Civil partners have same rights as spouses to make applications under the Inheritance (Provision
for Family and Dependants) Act 1975.
MARRIAGE Enables same sex couples to marry (came into force 13 March 2014)
(SAME SEX Treated same way as couples in opposite sex marriages
COUPLES) ACT Documents made:
2013 o Before the act are unaffected e.g. references in those documents to husband, wife,
widow etc. only refer to persons in an opposite sex marriage
o After the act include both opposite and same sex marriage, unless they contain express
provisions to the contrary
EUROPEAN UK has opted out of this regulation, but still impacts advising on wills and estate planning
SUCCESSION
REGULATION Aim Reduce expensive and time-consuming legal procedures that arise when
determining succession to property on death where the laws of more than
(‘BRUSSELS IV’) one state may be relevant and conflict
E.g. some states have forced heirship rules, which require property to be left
to particular family members
Best Where a person has assets in different jurisdictions, they should make
practice separate wills dealing with assets under the law of the relevant jurisdiction
If these other jurisdictions are bound by Brussels IV, they should ensure
there is consistency in stating in all the wills which law applies to which
asset.
, FAILURE OF GIFTS
ADEMPTION Failure of the gift because the specific item described no longer exists within the testator’s
estate at death
E.g. if ‘my gold necklace’ is left but given away before the testator dies
o If testator wants the beneficiary to have the substitute gift if the original adeems, they
need to describe the necklace in more general terms or provide a substitute gift
BURDEN OF COSTS May be costs associated with the packing or transport of the specific gift
Unless will provides otherwise, the beneficiary will bear these costs
Testator should consider if these costs will be too great for the beneficiary and, if so, provide
that the gift is free of these costs
GIFT INVOLVING Testator may leave a gift to several people inviting them to select an item from the estate
SELECTION o Should indicate the order of choosing
o Provide for means of resolving any dispute (e.g. decisions of executors is final)
o Require selection to be done within a time limit
GIFT OF SPECIFIC Susceptible to ademption as the company may be renamed, taken over, shares may be sold
COMPANY SHARES etc.
Shares may also be subject to a charge secured on them
General rule is that beneficiary will take subject to this charge unless the will provides otherwise
GIFT OF SPECIFIC Susceptible to ademption as testator may move house.
LAND A gift of the testator’s main residence at death will avoid some problems but not situations
where the testator owns no land at all (e.g. if gone into residential home)
Houses may also be subject to a mortgage
Should provide for gift of land to be free of a mortgage charge on the land (if they don't want
beneficiary to pay the mortgage) or ensure they leave benefit of the mortgage insurance policy
to the beneficiary as well
, BASIC CONTENTS OF A WILL
1. OPENING WORDS
PURPOSE Identify the testator and name of the document
DRAFTING State full name and address of testator
o If they hold any property in another name, include this other name and indicate they are
also known by it
o Can provide details of testator’s occupation to help identification
State the document is the ‘last will’ or ‘last will and testament’ (demonstrates intention)
If the will deals with assets located outside the UK, make it clear which assets this relates to.
If testator will marry in the near future, state the will is made in expectation of that marriage and
doesn't wish the marriage to revoke it
2. REVOCATION
PURPOSE Indicate that all earlier wills and codicils are expressly revoked
Any later will impliedly revokes earlier wills and codicils, but only to extent that the later will is
inconsistent with earlier provisions
Express revocation avoids this risk
DRAFTING Consider whether other wills dealing with assets outside the UK are revoked and, if not, make this
clear
Commonly incorporated into the commencement
3. DATE
DRAFTING Date may appear within the commencement or at the end (leave a space as will is dated on
execution)
4. APPOINTMENT OF EXECUTORS AND TRUSTEES
PURPOSE Appoint the persons that the testator has chosen to administer the estate – executor(s)
o If testator doesn't name their own, the Non-contentious Probate Rules 1987 (SI
1987/2024) will govern who can act as administrators
o May also appoint trustees
NUMBER
Maximum No maximum number
BUT only four can apply for the grant of probate to the same assets
Minimum Minimum number is one (two for any land held in trust)
BUT prudent to name two, in case of:
o Divorce (revokes their appointment) – S8A Wills Act 1837
o Executor pre-deceases testator
WHO TO
CHOOSE Advantages Disadvantages
Individuals who Familiar with testator’s estate May lack expertise to complete
are not Unlikely to charge the estate for their administration and may have to employ a
professionals time spent dealing with it solicitor
(family / friends)
Solicitors / other Will have necessary expertise to Will be paid for expenses and time spent
professionals administer the estate doing the wok
Family will be spared time and burden
while grieving
If an individual solicitor is appointed,
there is a risk they may die / retire, so a
firm can be appointed.
Banks or other Corporation will not die / retire Corporation may seem large and
trust Financial and legal expertise impersonal to the family
corporations May charge a percentage of the value to
the estate, which can be significant
Drafting provisions if a firm is appointed
1. WILL DRAFTING
a. Failure of Gifts
b. Basic Contents of a Will
c. Will Trusts – Flexible Will Drafting
d. Precatory Trusts
e. Taxation of Precatory Trusts
f. Wills Containing Flexible Trusts
g. IHT Implications of Discretionary Trusts in Wills
h. CGT Implications of Discretionary Trusts in Wills
i. Income Tax Implications of Discretionary Trusts in Wills
j. Possible Inheritance Act claim by surviving spouse / Civil Partner
2. LASTING POWERS OF ATTORNEY
a. Test for capacity – Mental Capacity Act 2005
b. Lasting Power Of Attorney analysis
3. IHT & WILL DRAFTING
a. Lifetime Chargeable Transfers
4. ESTATE PLANNING
a. Transfers Between Spouses / Civil Partners
b. The Matrimonial Home
c. Transferring Assets (other than the matrimonial home) into joint ownership
d. Transferring Assets outright from one spouse or civil partner to the other
e. Transfers from parents to children / remoter issue
f. Capital Gains Tax
g. Post-death disclaimers and variations
h. Gifts into trust
i. Gifts with a reserved benefit – s102 and Sch 20 Finance Act 1986
j. The Family Home
k. Post-death arrangements
l. Post-death variations
m. The scope of the statutory provisions for variations and disclaimers
n. Income tax, tax avoidance and post-death arrangements
5. CREATION OF LIFETIME SETTLEMENTS
a. Settlements
b. IHT & settlements
c. Settlements and IHT planning
d. CGT and lifetime settlements
e. Income tax and settlements
f. Structure of settlement
6. LIFE INTEREST & DISCRETIONARY TRUSTS
a. Trust advances and appointments
b. Power of advancement
7. TRUST INCOME & TERMINATION OF TRUSTS
a. Trust Administration
b. Reporting information on Trusts
c. Duties and powers administering a trust
d. Trustee investments
e. Appointment of original trustees
f. Appointment of subsequent trustees
g. Vesting trust property in the trustees
h. Taxation during the administration of a settlement
i. Distributing the trust funds
8. WILLS: TRUSTS FOR YOUNG PEOPLE & LIFE INTEREST TRUSTS
a. Will Trusts
b. Special IHT treatment for certain settlements created on death
c. Accumulation & Perpetuity Periods
9. FLEXIBLE WILL DRAFTING
a. Precatory trusts
b. Wills containing flexible trusts
c. Drafting discretionary trusts of residue
d. Wills containing a terminable life interest
e. Inheritance Act claims by a surviving spouse / civil partner
f. IHT treatment of settlements created on death / after March 2006
10.
, WEEK 1- WILL DRAFTING
PROFESSIONAL Solicitors must comply with principles 4, 5 and 7 and act with honesty, integrity and in the best interests
CONDUCT of clients. Paragraph 3.1 SRA CoC for Solicitors requires: you do not act if there is an own interest
conflict or a significant risk of such a conflict.
CIVIL Civil Partnership Act 2004 (CPA) - partners who have registered a civil partnership are treated as
PARTNERS spouses for the purposes of succession to property.
Main amendments include:
Revocation by marriage / CP unless a will is made in expectation of marriage or CP
Gift in will to former spouse / CP lapses where divorce / dissolution of CP occurs
Gifts attested by spouse/civil partner are void;
Entitlement on intestacy including rights to take ‘matrimonial home’ in or toward satisfaction of
absolute entitlement on intestacy
Civil partners have same rights as spouses to make applications under the Inheritance (Provision
for Family and Dependants) Act 1975.
MARRIAGE Enables same sex couples to marry (came into force 13 March 2014)
(SAME SEX Treated same way as couples in opposite sex marriages
COUPLES) ACT Documents made:
2013 o Before the act are unaffected e.g. references in those documents to husband, wife,
widow etc. only refer to persons in an opposite sex marriage
o After the act include both opposite and same sex marriage, unless they contain express
provisions to the contrary
EUROPEAN UK has opted out of this regulation, but still impacts advising on wills and estate planning
SUCCESSION
REGULATION Aim Reduce expensive and time-consuming legal procedures that arise when
determining succession to property on death where the laws of more than
(‘BRUSSELS IV’) one state may be relevant and conflict
E.g. some states have forced heirship rules, which require property to be left
to particular family members
Best Where a person has assets in different jurisdictions, they should make
practice separate wills dealing with assets under the law of the relevant jurisdiction
If these other jurisdictions are bound by Brussels IV, they should ensure
there is consistency in stating in all the wills which law applies to which
asset.
, FAILURE OF GIFTS
ADEMPTION Failure of the gift because the specific item described no longer exists within the testator’s
estate at death
E.g. if ‘my gold necklace’ is left but given away before the testator dies
o If testator wants the beneficiary to have the substitute gift if the original adeems, they
need to describe the necklace in more general terms or provide a substitute gift
BURDEN OF COSTS May be costs associated with the packing or transport of the specific gift
Unless will provides otherwise, the beneficiary will bear these costs
Testator should consider if these costs will be too great for the beneficiary and, if so, provide
that the gift is free of these costs
GIFT INVOLVING Testator may leave a gift to several people inviting them to select an item from the estate
SELECTION o Should indicate the order of choosing
o Provide for means of resolving any dispute (e.g. decisions of executors is final)
o Require selection to be done within a time limit
GIFT OF SPECIFIC Susceptible to ademption as the company may be renamed, taken over, shares may be sold
COMPANY SHARES etc.
Shares may also be subject to a charge secured on them
General rule is that beneficiary will take subject to this charge unless the will provides otherwise
GIFT OF SPECIFIC Susceptible to ademption as testator may move house.
LAND A gift of the testator’s main residence at death will avoid some problems but not situations
where the testator owns no land at all (e.g. if gone into residential home)
Houses may also be subject to a mortgage
Should provide for gift of land to be free of a mortgage charge on the land (if they don't want
beneficiary to pay the mortgage) or ensure they leave benefit of the mortgage insurance policy
to the beneficiary as well
, BASIC CONTENTS OF A WILL
1. OPENING WORDS
PURPOSE Identify the testator and name of the document
DRAFTING State full name and address of testator
o If they hold any property in another name, include this other name and indicate they are
also known by it
o Can provide details of testator’s occupation to help identification
State the document is the ‘last will’ or ‘last will and testament’ (demonstrates intention)
If the will deals with assets located outside the UK, make it clear which assets this relates to.
If testator will marry in the near future, state the will is made in expectation of that marriage and
doesn't wish the marriage to revoke it
2. REVOCATION
PURPOSE Indicate that all earlier wills and codicils are expressly revoked
Any later will impliedly revokes earlier wills and codicils, but only to extent that the later will is
inconsistent with earlier provisions
Express revocation avoids this risk
DRAFTING Consider whether other wills dealing with assets outside the UK are revoked and, if not, make this
clear
Commonly incorporated into the commencement
3. DATE
DRAFTING Date may appear within the commencement or at the end (leave a space as will is dated on
execution)
4. APPOINTMENT OF EXECUTORS AND TRUSTEES
PURPOSE Appoint the persons that the testator has chosen to administer the estate – executor(s)
o If testator doesn't name their own, the Non-contentious Probate Rules 1987 (SI
1987/2024) will govern who can act as administrators
o May also appoint trustees
NUMBER
Maximum No maximum number
BUT only four can apply for the grant of probate to the same assets
Minimum Minimum number is one (two for any land held in trust)
BUT prudent to name two, in case of:
o Divorce (revokes their appointment) – S8A Wills Act 1837
o Executor pre-deceases testator
WHO TO
CHOOSE Advantages Disadvantages
Individuals who Familiar with testator’s estate May lack expertise to complete
are not Unlikely to charge the estate for their administration and may have to employ a
professionals time spent dealing with it solicitor
(family / friends)
Solicitors / other Will have necessary expertise to Will be paid for expenses and time spent
professionals administer the estate doing the wok
Family will be spared time and burden
while grieving
If an individual solicitor is appointed,
there is a risk they may die / retire, so a
firm can be appointed.
Banks or other Corporation will not die / retire Corporation may seem large and
trust Financial and legal expertise impersonal to the family
corporations May charge a percentage of the value to
the estate, which can be significant
Drafting provisions if a firm is appointed
