WILLS AND ADMINISTRATION OF ESTATES
SECTION A – DISTRIBUTION OF A PERSON’S PROPERTY ON DEATH
Testate
o person who dies with a valid will
Intestate
o person who dies without a valid will and therefore Intestacy Rules apply
Partially Intestate
o person who dies with a valid will, but the terms of the will do not dispose of all the succession estate
SUCESSION ESTATE – What is EXCLUDED?
Property held as joint tenants
o Automatically passes to remaining joint tenant(s)
o Share of tenants in common WILL form part of the SE
Insurance policies written in trust
Pension benefits
o If nominated a third party, then money must be paid to that third party and does NOT form part of
the SE; BUT
o If payable to the PRs, then WILL form part of the SE
Statutory nominations
o Transfer of ownership of sums of money held in certain friendly society bank accounts - limited to
£5,000
Donatio mortis causa
o Gift made during the donor’s lifetime in contemplation of, and conditional upon, the death of the
donor
Trusts / Settlements
o Life Tenant – (£ income during lifetime e.g. rental income from trust property)
o Remainderman – (£ capital when life tenant dies)
Everything else forms part of the SE
Surviving spouse has right to have the family home appropriated to them
o Must be exercised within 12 months of the grant of representation (PR) – powers under s41 AEA to
effect appropriation
o Normally, a beneficiary cannot force the PRs to transfer (‘appropriate’) a specific item from the
estate to them as part of their inheritance. However, where the family home (or share of it) forms
part of the succession estate i.e. it was solely owned by the deceased or held jointly as tenants in
common, a surviving spouse can require the PRs to appropriate this to them as part of their
entitlement
o If entitlement under the estate is worth less than the value of the property, then the spouse will
need to pay the PRs the difference using their own funds
,INTESTACY
Who is entitled to the SE
o spouse / civil partner – must survive the intestate by at least 28 days
o Issue – children / grandchildren
Statutory trusts
o Issue are entitled to statutory trusts – beneficiary must survive the intestate and reach the age of 18 or
marry earlier to inherit:
Contingent Interest – not satisfied the above
Vested Interest – has satisfied the above
, WILLS
VALIDITY (18 or over unless with privileged status)
1) Capacity
Banks v Goodfellow – ‘soundness of mind, memory and understanding’ i.e. must understand:
nature of his act and its broad effect
extent of his property
moral claims he ought to consider
Must exist at the time the will is executed unless (Parker v Felgate)
testator had capacity when giving instructions for will
the will is prepared in accordance with those instructions
at the time of execution, the testator understands he is executing a will for which he
gave instructions
2) Intention
Must have general intention to make ‘a will’ and specific intention to make the specific will
they are signing
Presumption that intention exists where capacity exists – presumption can be rebutted where
circumstances suggest lack of intention
3) Formalities must be complied with under s9 Wills Act 1837
Signed by testator
‘in writing and signed by the testator, or by some other person in the testator’s
presence and by their direction’ (e.g. physically unable to sign) and ‘it appears that
the testator by his signature intended to give effect to the will’
Signed by witnesses
‘made or acknowledged by the testator in the presence of two or more witnesses’,
both of whom must be present at the time the testator either signs or acknowledges
his signature
AND
each witness ‘attests and signs the will (or acknowledges his signature) in the
presence of the testator (but not necessarily in the presence of any other witness)’
Witness should be adult and capable of attestation e.g. not drunk
If a beneficiary, or their spouse at the time of execution, acts as a witness, they will not be
able to inherit under the will (s15 WA)
CONCLUDING CLAUSES
1) Attestation
Must state that necessary formalities under s9 WA have been complied with – can be valid
without providing s9 was complied with (presumption of due execution)
Without such clause, proof that the correct procedure was followed is required at probate e.g.
affidavits of due execution sworn by witnesses
2) Date
Does not invalidate will without a date but inclusion enable Probate Registry to ascertain the
last will of the testator
INCORPORATION OF DOCUMENTS
1) Three conditions, document must:
be clearly identified in the will;
already exist at the date of the will (burden of proof rest with person seeking incorporation of
the document); and
be referred to in the will as already in existence at the time of execution.
2) Codicils
Add-on to an existing will to supplement terms and read together with the original will e.g.
amend / add / remove a provision
SECTION A – DISTRIBUTION OF A PERSON’S PROPERTY ON DEATH
Testate
o person who dies with a valid will
Intestate
o person who dies without a valid will and therefore Intestacy Rules apply
Partially Intestate
o person who dies with a valid will, but the terms of the will do not dispose of all the succession estate
SUCESSION ESTATE – What is EXCLUDED?
Property held as joint tenants
o Automatically passes to remaining joint tenant(s)
o Share of tenants in common WILL form part of the SE
Insurance policies written in trust
Pension benefits
o If nominated a third party, then money must be paid to that third party and does NOT form part of
the SE; BUT
o If payable to the PRs, then WILL form part of the SE
Statutory nominations
o Transfer of ownership of sums of money held in certain friendly society bank accounts - limited to
£5,000
Donatio mortis causa
o Gift made during the donor’s lifetime in contemplation of, and conditional upon, the death of the
donor
Trusts / Settlements
o Life Tenant – (£ income during lifetime e.g. rental income from trust property)
o Remainderman – (£ capital when life tenant dies)
Everything else forms part of the SE
Surviving spouse has right to have the family home appropriated to them
o Must be exercised within 12 months of the grant of representation (PR) – powers under s41 AEA to
effect appropriation
o Normally, a beneficiary cannot force the PRs to transfer (‘appropriate’) a specific item from the
estate to them as part of their inheritance. However, where the family home (or share of it) forms
part of the succession estate i.e. it was solely owned by the deceased or held jointly as tenants in
common, a surviving spouse can require the PRs to appropriate this to them as part of their
entitlement
o If entitlement under the estate is worth less than the value of the property, then the spouse will
need to pay the PRs the difference using their own funds
,INTESTACY
Who is entitled to the SE
o spouse / civil partner – must survive the intestate by at least 28 days
o Issue – children / grandchildren
Statutory trusts
o Issue are entitled to statutory trusts – beneficiary must survive the intestate and reach the age of 18 or
marry earlier to inherit:
Contingent Interest – not satisfied the above
Vested Interest – has satisfied the above
, WILLS
VALIDITY (18 or over unless with privileged status)
1) Capacity
Banks v Goodfellow – ‘soundness of mind, memory and understanding’ i.e. must understand:
nature of his act and its broad effect
extent of his property
moral claims he ought to consider
Must exist at the time the will is executed unless (Parker v Felgate)
testator had capacity when giving instructions for will
the will is prepared in accordance with those instructions
at the time of execution, the testator understands he is executing a will for which he
gave instructions
2) Intention
Must have general intention to make ‘a will’ and specific intention to make the specific will
they are signing
Presumption that intention exists where capacity exists – presumption can be rebutted where
circumstances suggest lack of intention
3) Formalities must be complied with under s9 Wills Act 1837
Signed by testator
‘in writing and signed by the testator, or by some other person in the testator’s
presence and by their direction’ (e.g. physically unable to sign) and ‘it appears that
the testator by his signature intended to give effect to the will’
Signed by witnesses
‘made or acknowledged by the testator in the presence of two or more witnesses’,
both of whom must be present at the time the testator either signs or acknowledges
his signature
AND
each witness ‘attests and signs the will (or acknowledges his signature) in the
presence of the testator (but not necessarily in the presence of any other witness)’
Witness should be adult and capable of attestation e.g. not drunk
If a beneficiary, or their spouse at the time of execution, acts as a witness, they will not be
able to inherit under the will (s15 WA)
CONCLUDING CLAUSES
1) Attestation
Must state that necessary formalities under s9 WA have been complied with – can be valid
without providing s9 was complied with (presumption of due execution)
Without such clause, proof that the correct procedure was followed is required at probate e.g.
affidavits of due execution sworn by witnesses
2) Date
Does not invalidate will without a date but inclusion enable Probate Registry to ascertain the
last will of the testator
INCORPORATION OF DOCUMENTS
1) Three conditions, document must:
be clearly identified in the will;
already exist at the date of the will (burden of proof rest with person seeking incorporation of
the document); and
be referred to in the will as already in existence at the time of execution.
2) Codicils
Add-on to an existing will to supplement terms and read together with the original will e.g.
amend / add / remove a provision
