1) Validity
What is required for testamentary capacity?
Mental capacity requires that T understood the nature of his act, property and moral claims
they ought to give effect to. T should not suffer from a mental delusion, otherwise a will
should be witnessed by a medical practitioner.
Mental capacity also exists where T knew the contents and approved them, rather than
understanding, and T had capacity.
Mental capacity is presumed where T had capacity when instructing a solicitor to
prepare the will, the will is prepared according to instructions, and T was capable of
understanding the will when instructing (not executing).
Overall, the burden of proof is on the person seeking to admit the will to probate
(executor).
What is required for undue influence?
For testamentary wills, undue influence must actually exist based on coercion which
persuades T to do something by force or threat.
For lifetime gifts and contracts, undue influence is presumed by threat, coercion.
Because it does not reflect T’s true intent, the will becomes void.
The burden of proof is on the opposing party (high burden).
What are the formalities of a will?
First, testamentary capacity is required. T must be 18 years or older with mental capacity.
Second, the will must be in writing. Third, T must sign the will, or another party signs it in
T’s presence and by T’s direction. T’s initials are not sufficient. Fourth, T must intend that
such signature effectuates the will. Fifth, it must be signed in front of 2 or more witnesses at
the same time. Lastly, each witness must sign the will in front of T. They do not have to
know they are witnessing the will.
Statutory will requires changes towards T’s circumstances, property being adeemed, changes
to the previous beneficiaries, doubts over the previous will, T never making the will before,
high value assets, or T’s lack of capacity.
Privileged will requires a privileged testator (military soldier, mariner, naval member),
oral/writing. No signature nor witnessing is required.
Foreign will conforms to the law of the state where the will was executed, T’s
domicile/habitual residency is situated, or T was national.
Mutual will requires 2 or more parties executing the will, they agree that the survivor is
bound by the agreement, the first party dies, and it is made orally/in writing.
Letter of wishes accompanies the will. It is not legally binding nor publicly available on
death. T dates it, signs it, and addresses it to the executors.
, 2) Personal Representatives
Who are the personal representatives?
Executors will create the will, otherwise administrators will create it.
What duties do PRs owe to the deceased?
As the deceased passes its estate to their PRs, PRs may administer the estate by owing their
duties of good faith and care, as well as paying their debts and gifts, and disposing the
residue. Exceptions to liability include court relief, clause excluding/modifying statutory
duties, Section 27 TA 1925 notice sent immediately to London Gazette and the local
newspaper. There are exceptions where they will be liable because they were aware of their
liabilities or the beneficiaries cannot be traced and they made claims. However, certain
protection orders may be made. For example, Benjamin Order allows Beneficiary found later
to force a claim against Beneficiary receiving the share. Insurance allows PR to force action
against Beneficiary found later. Known Beneficiary can indemnify PR. PR can reserve
fund/payment into court.
What is Executor’s role?
Executor must determine the assets, whether they are held in sole/joint name and their
valuation at date of T’s death. Executor must determine debts and liabilities. Executor must
account for funeral expenses. Executor will have to make IHT return, deliver Form PA1P and
apply for grant of representation. Executor will convert the assets to cash, sell any property,
and make payments to Beneficiaries.
What is required for valid Executor appointment?
Executor is validly appointed if Executor survives Testator. Otherwise, the residuary estate
will be valid and T can appoint residuary beneficiary, own PR, legatee as executor. However,
T cannot appoint his ex-spouse, someone who lacks capacity, or not assisting in the
administration of the estate.
What safeguards may be installed to protect the Executor?
Either Section 27 Trustee Act Notice can be made or Executor may wait 6 months after grant
of representation to safeguard himself from creditors and beneficiaries.
What is required for renunciation of power?
Renunciation requires writing, signed and witnessed.
Executors acquire their powers from will and statute. If there is no valid will, Administrator
acquire their power from statute.
Remaining Executors renunciate by applying for a grant. Otherwise, Administrator will act.
An executor may only do so if they have not intermeddled in the estate, meaning that having
done anything more than arranging a funeral.
What is required for testamentary capacity?
Mental capacity requires that T understood the nature of his act, property and moral claims
they ought to give effect to. T should not suffer from a mental delusion, otherwise a will
should be witnessed by a medical practitioner.
Mental capacity also exists where T knew the contents and approved them, rather than
understanding, and T had capacity.
Mental capacity is presumed where T had capacity when instructing a solicitor to
prepare the will, the will is prepared according to instructions, and T was capable of
understanding the will when instructing (not executing).
Overall, the burden of proof is on the person seeking to admit the will to probate
(executor).
What is required for undue influence?
For testamentary wills, undue influence must actually exist based on coercion which
persuades T to do something by force or threat.
For lifetime gifts and contracts, undue influence is presumed by threat, coercion.
Because it does not reflect T’s true intent, the will becomes void.
The burden of proof is on the opposing party (high burden).
What are the formalities of a will?
First, testamentary capacity is required. T must be 18 years or older with mental capacity.
Second, the will must be in writing. Third, T must sign the will, or another party signs it in
T’s presence and by T’s direction. T’s initials are not sufficient. Fourth, T must intend that
such signature effectuates the will. Fifth, it must be signed in front of 2 or more witnesses at
the same time. Lastly, each witness must sign the will in front of T. They do not have to
know they are witnessing the will.
Statutory will requires changes towards T’s circumstances, property being adeemed, changes
to the previous beneficiaries, doubts over the previous will, T never making the will before,
high value assets, or T’s lack of capacity.
Privileged will requires a privileged testator (military soldier, mariner, naval member),
oral/writing. No signature nor witnessing is required.
Foreign will conforms to the law of the state where the will was executed, T’s
domicile/habitual residency is situated, or T was national.
Mutual will requires 2 or more parties executing the will, they agree that the survivor is
bound by the agreement, the first party dies, and it is made orally/in writing.
Letter of wishes accompanies the will. It is not legally binding nor publicly available on
death. T dates it, signs it, and addresses it to the executors.
, 2) Personal Representatives
Who are the personal representatives?
Executors will create the will, otherwise administrators will create it.
What duties do PRs owe to the deceased?
As the deceased passes its estate to their PRs, PRs may administer the estate by owing their
duties of good faith and care, as well as paying their debts and gifts, and disposing the
residue. Exceptions to liability include court relief, clause excluding/modifying statutory
duties, Section 27 TA 1925 notice sent immediately to London Gazette and the local
newspaper. There are exceptions where they will be liable because they were aware of their
liabilities or the beneficiaries cannot be traced and they made claims. However, certain
protection orders may be made. For example, Benjamin Order allows Beneficiary found later
to force a claim against Beneficiary receiving the share. Insurance allows PR to force action
against Beneficiary found later. Known Beneficiary can indemnify PR. PR can reserve
fund/payment into court.
What is Executor’s role?
Executor must determine the assets, whether they are held in sole/joint name and their
valuation at date of T’s death. Executor must determine debts and liabilities. Executor must
account for funeral expenses. Executor will have to make IHT return, deliver Form PA1P and
apply for grant of representation. Executor will convert the assets to cash, sell any property,
and make payments to Beneficiaries.
What is required for valid Executor appointment?
Executor is validly appointed if Executor survives Testator. Otherwise, the residuary estate
will be valid and T can appoint residuary beneficiary, own PR, legatee as executor. However,
T cannot appoint his ex-spouse, someone who lacks capacity, or not assisting in the
administration of the estate.
What safeguards may be installed to protect the Executor?
Either Section 27 Trustee Act Notice can be made or Executor may wait 6 months after grant
of representation to safeguard himself from creditors and beneficiaries.
What is required for renunciation of power?
Renunciation requires writing, signed and witnessed.
Executors acquire their powers from will and statute. If there is no valid will, Administrator
acquire their power from statute.
Remaining Executors renunciate by applying for a grant. Otherwise, Administrator will act.
An executor may only do so if they have not intermeddled in the estate, meaning that having
done anything more than arranging a funeral.
