WILLS AND ADMIN REVISION
UNIT 1 : VALIDITY OF WILLS AND HOW PROPERTY PASSES ON DEATH
CHAPTER 1: VALIDITY OF WILLS AND HOW PROPERTY PASSES ON DEATH
Introduction
Independent Asset Transfer: Assets can pass outside the terms of a will.
Key Questions: Does the deceased have a valid will? Do assets pass
independently or under intestacy rules?
Intestacy Rules: Govern distribution of assets not covered by a valid will.
Governed by the Administration of Estates Act 1925.
Property Passing Outside the Will and Intestacy Rules
Joint Property:
o Joint Tenants: Deceased's share passes to surviving tenants by
survivorship.
o Tenants in Common: Share passes under will or intestacy rules.
Insurance Policies:
o On death, policy matures and insurance companies pay proceeds to
personal representatives (PRs) or named beneficiaries under a trust.
Pension Benefits:
o ‘Dies in service’- usually paid to dependents at trustees' discretion; letters
of wishes are not binding
o Lump sum calculates on the basis of an employee’s salary paid by
trustees of the pension fund
Trust Property:
o Devolves per trust terms, not the deceased’s will.
Analysis of Beneficial Entitlements Upon Death
1. Property passing outside the will.
2. Property passing under the will.
3. Property not disposed of passing under intestacy.
Wills Terminology
Testator/Testatrix: Person making the will.
Structure of a Will:
o Revocation Clause: Cancels previous wills.
o Appointment of Executors: PRs handle estate distribution, Application to
His Majesty’s Courts and Tribunal Service Probate for grant of probate
(confirms validity of will and authority to act)
o Gifts:
Specific (e.g., personal items).
General (e.g., unspecified items)- if T doesn’t own at death,
executors should obtain it with funds from trust (Rare unless money
gift)
Demonstrative (from a specific fund)- if less than 500 or no account-
pay from estate and classify as general
Pecuniary (money).
Residuary (remainder of the estate).
Requirements for a Valid Will
- Need Capacity, intention and formalities
Capacity:
o Must be 18+ with sound mind (Banks v Goodfellow).
o Should understand nature of their act and extent of property don’t have to
recall every item) and must have capacity at the time they execute the
will
o Exception: Parker v Feltgate (instructions valid even if capacity lost later).
, o If incapable, Court of Protection can approve a statutory will.
o Where a testator has capacity and the will has been duly executed, there
is a presumption of knowledge and approval. Any person who wishes to
challenge the will must prove undue influence
Golden Rule:
o Solicitor should involve a doctor to confirm capacity and document
findings
o Solicitor should note down own view too and keep on file in case
challenged
Burden of Proof:
o For person asserting will is valid to prove it
o Executors rely on presumption of capacity (arises at application for
probate)
o Burden shifts to challenger to prove lack of capacity
Intention
Testator must intend to:
o Make a will (general intention)
o Intend to make the particular will being executed and know and approve
of its content (specific intention)
Exceptions to Presumption:
o Suspicious circumstances (major beneficiary/close relative, limited
intelligence, beneficiary plays no part at all)
o Blind/illiterate testator—proof of knowledge required before issuing grant
of probate
o Solicitor shouldn’t accept instructions from third party to draw up will for
testator- interview testator in absence of third party
Force, Fear, Fraud, Undue Influence, and Mistake
Prove to stop some/all of will being admitted to probate:
o Force or fear (through actual or threatened injury) or
o Fraud
o Undue influence (intolerable pressure/coercions or duress)
High threshold for proving undue influence.
Presumption doesn’t apply if all/part of will included by mistake- words included
without knowledge and approval will be omitted from probate
Distinguish between actual mistake and misunderstanding
Formalities of Execution (s 9 Wills Act 1837)
Key Requirements for a Valid Will:
1. Writing:
o Will must be in writing.
o No restrictions on materials or wording (e.g., not limited to paper).
o Electronic wills are not valid due to fraud concerns.
2. Signature by Testator (T):
o T must sign, or another person may sign on their behalf in T’s presence
and direction.
o Acceptable signatures:
Any mark representing the name (e.g., crosses, thumbprints).
Estate of Cook [1960]: "Your loving mother" deemed valid as it
identified T.
3. Intent:
o T must intend the signature to give effect to the will.
4. Witnesses:
o T’s signature must be:
, Made or acknowledged in the presence of two witnesses
simultaneously.
s9 permits the testator to sign the will without the witnesses being
present, provided they go on to acknowledge that signature in the
presence of the witnesses.
Witnesses must sign in T’s presence (not necessarily in each other’s
presence).
o Presence involves mental and physical awareness and an unobstructed
line of sight.
o Witnessing alternative: Acknowledging signatures if not present during
signing
o Understand significance of being witness to a signature
o If either of the witnesses is a beneficiary under the will or is the spouse or
civil partner of a beneficiary, the will remains valid but the gift to the
witness or to the witness’s spouse/civil partner fails (s 15 Wills Act 1837)
Remote Witnessing (Temporary During COVID):
Allowed for wills executed between 28 Sept 2020 – 31 Jan 2024.
Remote presence by video allowed for witnesses but not for T's physical
signature.
Procedure:
o T signs and dates physically.
o Will sent to witnesses to sign in virtual presence of testator
o Execution incomplete until all parties have signed.
Privileged Wills (s 11 Wills Act 1837):
Applies to military personnel on active service or mariners/seamen at sea.
May be in any form, including oral statements, with intent to dispose of property
Presumption of Due Execution:
1. General Rule:
o The person who is asserting a will is valid must prove its validity.
2. Presumption of Due Execution:
o Arises if an attestation clause states s 9 formalities were observed.
o Challengers must prove invalid execution.
Absence of Attestation Clause:
HMCTS requires:
o Affidavit of due execution or verified witness statement (verified with
statement of truth)
o Affidavit of handwriting if necessary (to identify T’s signature)
o Case referred to a judge if unresolved (time and expense)
Solicitors' Duties:
1. Client Instructions:
o Clear guidance on signing and witnessing.
o Warn beneficiaries/spouses not to witness.
2. Execution Supervision:
o Preferable at solicitor's office.
o If executed at home, ensure will is returned for compliance checks.
3. Negligence Risks:
o Failure to follow formalities = liability for negligence.
o Duty of care owed to the prospective beneficiaries (Humbleston v Martin
Tolhurst Partnership [2004]).
CHAPTER 4: INTESTANCY
, The Operation of the Intestacy Rules
Governing Law: Intestacy Rules and Administration of Estates Act 1925 (AEA
1925).
When Rules Apply:
o No will (never made or revoked).
o Total intestacy: Invalid will or valid will failing to dispose of the estate.
o Partial intestacy: Valid will but fails to dispose of part of the estate (e.g.,
omission of residuary gift).
Mandatory Nature: Intestacy rules cannot exclude specific individuals but can
be displaced in limited cases (e.g., via Inheritance Act orders).
Scope: Apply only to property that can be disposed of by will.
Statutory Trust
Definition: All intestate property is held on a statutory trust (s 33 AEA 1925).
Trustee: Personal representatives (PRs) administer the trust and includes power
of sale
Duties: Pay funeral, testamentary expenses, debts, and taxes. Residuary estate
is distributed to family per s 46 AEA 1925.
Powers: PRs can sell assets to meet expenses (s 41 AEA 1925).
Rules of Distribution
Estate primarily passes to family; unmarried partners, friends and fave charities
excluded.
Distribution order (s 46 AEA 1925):
1. Surviving spouse or civil partner.
2. Issue (children, grandchildren, etc.).
3. Parents, siblings, grandparents, uncles/aunts, or Crown.
Distribution with Spouse/Civil Partner and Issue
Definition of Spouse: Must be legally married at the time of death;
cohabitants excluded. Nature of relationship irrelevant.
Former spouse is excluded
Marriage voided if one party already married/underage (void ab intio)
Voidable marriage due to duress/mental disability- valid until court makes nullity
order
Entitlement:
o Spouse gets personal chattels outside of property (monies/securities for
money, used at death of intestate mainly/solely for business purposes or
held at death solely for investment) and statutory legacy (£322,000 +
interest).
o If residuary estate less than 322,000- receive all of it (partial intestacy-
spouse does not have to account for anything received under the will)
o Residuary estate: 50% to spouse, 50% to issue under statutory trusts.
o Spouse must survive intestate by 28 days to inherit
Family Home
Ownership:
o Beneficial joint tenants: Passes by survivorship.
o Tenants in common: Form part of the residuary estate and subject to
intestacy rules.
Spouse’s Right: May appropriate home (fully/partially) if value ≤ entitlement,
paying the difference if needed (equality money)- must be living in the property
and notify the PRs in writing within 12 months of the grant of representation
UNIT 1 : VALIDITY OF WILLS AND HOW PROPERTY PASSES ON DEATH
CHAPTER 1: VALIDITY OF WILLS AND HOW PROPERTY PASSES ON DEATH
Introduction
Independent Asset Transfer: Assets can pass outside the terms of a will.
Key Questions: Does the deceased have a valid will? Do assets pass
independently or under intestacy rules?
Intestacy Rules: Govern distribution of assets not covered by a valid will.
Governed by the Administration of Estates Act 1925.
Property Passing Outside the Will and Intestacy Rules
Joint Property:
o Joint Tenants: Deceased's share passes to surviving tenants by
survivorship.
o Tenants in Common: Share passes under will or intestacy rules.
Insurance Policies:
o On death, policy matures and insurance companies pay proceeds to
personal representatives (PRs) or named beneficiaries under a trust.
Pension Benefits:
o ‘Dies in service’- usually paid to dependents at trustees' discretion; letters
of wishes are not binding
o Lump sum calculates on the basis of an employee’s salary paid by
trustees of the pension fund
Trust Property:
o Devolves per trust terms, not the deceased’s will.
Analysis of Beneficial Entitlements Upon Death
1. Property passing outside the will.
2. Property passing under the will.
3. Property not disposed of passing under intestacy.
Wills Terminology
Testator/Testatrix: Person making the will.
Structure of a Will:
o Revocation Clause: Cancels previous wills.
o Appointment of Executors: PRs handle estate distribution, Application to
His Majesty’s Courts and Tribunal Service Probate for grant of probate
(confirms validity of will and authority to act)
o Gifts:
Specific (e.g., personal items).
General (e.g., unspecified items)- if T doesn’t own at death,
executors should obtain it with funds from trust (Rare unless money
gift)
Demonstrative (from a specific fund)- if less than 500 or no account-
pay from estate and classify as general
Pecuniary (money).
Residuary (remainder of the estate).
Requirements for a Valid Will
- Need Capacity, intention and formalities
Capacity:
o Must be 18+ with sound mind (Banks v Goodfellow).
o Should understand nature of their act and extent of property don’t have to
recall every item) and must have capacity at the time they execute the
will
o Exception: Parker v Feltgate (instructions valid even if capacity lost later).
, o If incapable, Court of Protection can approve a statutory will.
o Where a testator has capacity and the will has been duly executed, there
is a presumption of knowledge and approval. Any person who wishes to
challenge the will must prove undue influence
Golden Rule:
o Solicitor should involve a doctor to confirm capacity and document
findings
o Solicitor should note down own view too and keep on file in case
challenged
Burden of Proof:
o For person asserting will is valid to prove it
o Executors rely on presumption of capacity (arises at application for
probate)
o Burden shifts to challenger to prove lack of capacity
Intention
Testator must intend to:
o Make a will (general intention)
o Intend to make the particular will being executed and know and approve
of its content (specific intention)
Exceptions to Presumption:
o Suspicious circumstances (major beneficiary/close relative, limited
intelligence, beneficiary plays no part at all)
o Blind/illiterate testator—proof of knowledge required before issuing grant
of probate
o Solicitor shouldn’t accept instructions from third party to draw up will for
testator- interview testator in absence of third party
Force, Fear, Fraud, Undue Influence, and Mistake
Prove to stop some/all of will being admitted to probate:
o Force or fear (through actual or threatened injury) or
o Fraud
o Undue influence (intolerable pressure/coercions or duress)
High threshold for proving undue influence.
Presumption doesn’t apply if all/part of will included by mistake- words included
without knowledge and approval will be omitted from probate
Distinguish between actual mistake and misunderstanding
Formalities of Execution (s 9 Wills Act 1837)
Key Requirements for a Valid Will:
1. Writing:
o Will must be in writing.
o No restrictions on materials or wording (e.g., not limited to paper).
o Electronic wills are not valid due to fraud concerns.
2. Signature by Testator (T):
o T must sign, or another person may sign on their behalf in T’s presence
and direction.
o Acceptable signatures:
Any mark representing the name (e.g., crosses, thumbprints).
Estate of Cook [1960]: "Your loving mother" deemed valid as it
identified T.
3. Intent:
o T must intend the signature to give effect to the will.
4. Witnesses:
o T’s signature must be:
, Made or acknowledged in the presence of two witnesses
simultaneously.
s9 permits the testator to sign the will without the witnesses being
present, provided they go on to acknowledge that signature in the
presence of the witnesses.
Witnesses must sign in T’s presence (not necessarily in each other’s
presence).
o Presence involves mental and physical awareness and an unobstructed
line of sight.
o Witnessing alternative: Acknowledging signatures if not present during
signing
o Understand significance of being witness to a signature
o If either of the witnesses is a beneficiary under the will or is the spouse or
civil partner of a beneficiary, the will remains valid but the gift to the
witness or to the witness’s spouse/civil partner fails (s 15 Wills Act 1837)
Remote Witnessing (Temporary During COVID):
Allowed for wills executed between 28 Sept 2020 – 31 Jan 2024.
Remote presence by video allowed for witnesses but not for T's physical
signature.
Procedure:
o T signs and dates physically.
o Will sent to witnesses to sign in virtual presence of testator
o Execution incomplete until all parties have signed.
Privileged Wills (s 11 Wills Act 1837):
Applies to military personnel on active service or mariners/seamen at sea.
May be in any form, including oral statements, with intent to dispose of property
Presumption of Due Execution:
1. General Rule:
o The person who is asserting a will is valid must prove its validity.
2. Presumption of Due Execution:
o Arises if an attestation clause states s 9 formalities were observed.
o Challengers must prove invalid execution.
Absence of Attestation Clause:
HMCTS requires:
o Affidavit of due execution or verified witness statement (verified with
statement of truth)
o Affidavit of handwriting if necessary (to identify T’s signature)
o Case referred to a judge if unresolved (time and expense)
Solicitors' Duties:
1. Client Instructions:
o Clear guidance on signing and witnessing.
o Warn beneficiaries/spouses not to witness.
2. Execution Supervision:
o Preferable at solicitor's office.
o If executed at home, ensure will is returned for compliance checks.
3. Negligence Risks:
o Failure to follow formalities = liability for negligence.
o Duty of care owed to the prospective beneficiaries (Humbleston v Martin
Tolhurst Partnership [2004]).
CHAPTER 4: INTESTANCY
, The Operation of the Intestacy Rules
Governing Law: Intestacy Rules and Administration of Estates Act 1925 (AEA
1925).
When Rules Apply:
o No will (never made or revoked).
o Total intestacy: Invalid will or valid will failing to dispose of the estate.
o Partial intestacy: Valid will but fails to dispose of part of the estate (e.g.,
omission of residuary gift).
Mandatory Nature: Intestacy rules cannot exclude specific individuals but can
be displaced in limited cases (e.g., via Inheritance Act orders).
Scope: Apply only to property that can be disposed of by will.
Statutory Trust
Definition: All intestate property is held on a statutory trust (s 33 AEA 1925).
Trustee: Personal representatives (PRs) administer the trust and includes power
of sale
Duties: Pay funeral, testamentary expenses, debts, and taxes. Residuary estate
is distributed to family per s 46 AEA 1925.
Powers: PRs can sell assets to meet expenses (s 41 AEA 1925).
Rules of Distribution
Estate primarily passes to family; unmarried partners, friends and fave charities
excluded.
Distribution order (s 46 AEA 1925):
1. Surviving spouse or civil partner.
2. Issue (children, grandchildren, etc.).
3. Parents, siblings, grandparents, uncles/aunts, or Crown.
Distribution with Spouse/Civil Partner and Issue
Definition of Spouse: Must be legally married at the time of death;
cohabitants excluded. Nature of relationship irrelevant.
Former spouse is excluded
Marriage voided if one party already married/underage (void ab intio)
Voidable marriage due to duress/mental disability- valid until court makes nullity
order
Entitlement:
o Spouse gets personal chattels outside of property (monies/securities for
money, used at death of intestate mainly/solely for business purposes or
held at death solely for investment) and statutory legacy (£322,000 +
interest).
o If residuary estate less than 322,000- receive all of it (partial intestacy-
spouse does not have to account for anything received under the will)
o Residuary estate: 50% to spouse, 50% to issue under statutory trusts.
o Spouse must survive intestate by 28 days to inherit
Family Home
Ownership:
o Beneficial joint tenants: Passes by survivorship.
o Tenants in common: Form part of the residuary estate and subject to
intestacy rules.
Spouse’s Right: May appropriate home (fully/partially) if value ≤ entitlement,
paying the difference if needed (equality money)- must be living in the property
and notify the PRs in writing within 12 months of the grant of representation
