WLLS AND ADMINSTRATION NOTES
UNIT 1: Validity of Wills and Intestacy
CHAPTER 1: Validity of Wills and How Property Passes on Death
Introduction - Many valuable assets pass independently of the terms of
the will
- Do any assets pass outside the will?
- Has the deceased left a will? Is it valid?
- Intestacy rules- any assets which so not pass
independently or under a valid will fail to be distributed
- Administration of estates Act 1925- intestacy rules
Property Joint property
passing - Where property is held by more than one person as
outside the beneficial joint tenants, when one dies their interest passes
will and by survivorship to the surviving joint tenants
intestacy - Survivorship does not pass to tenants in common, passes
rules on their death under their will (or under the intestacy rules)
Insurance policies
- Benefit of simple policy of life assurance belongs to the
person who took it out
- On person’s death, the policy matures and insurance
company will pay the proceeds to the deceased’s PR’s-
they will distribute the money according to will terms or
intestacy rules
- Life assurance policy can be written in trust for specified
individuals, can also be transferred or assigned to named
beneficiaries when first taken out or at a later date
- Policy will not belong to policy holder
- On death, policy matures and insurance company will pay
proceeds to beneficiaries or trustees regardless of the
terms of the deceased’s will or the intestacy rules
Pension benefits
- If employee dies ‘in service’- lump sum calculated on the
basis of an employee’s salary paid by trustees of the
pension fund to members or dependants chosen at
trustees discretion
- Employees can leave letters indicating who they want to
benefit- not binding on the pension fund trustess
- Do not belong to employee
- Few pension schemes provide that the lump sum must be
paid to the employee’s PRs- then distribute according to
employee’s wills or the intestacy rules
Trust property
- Many equitable interests come to an end on the
beneficiary’s death
- Trust property will devolved according to the terms of the
trust and not the deceased life tenant’s will
Analysis of beneficial entitlements of death
- Deal with the deceased assets in the following order:
,WLLS AND ADMINSTRATION NOTES
o 1) Property passing outside the will
o 2) Property passing under the will
o 3) Any property not disposed of passing on intestacy
Wills - Testator/testatrix- a person making a will
terminology Usually follows this structure:
- Revocation clause- revokes prior wills
- Direction as to disposal of the body- no legal effect, let
friends and fam know
- Appointment of executors- (PRs)- collect T’s assets, pay
their debts and any inheritance tax and distribute the
remaining assets to whoever is entitled under the will.
Application to His Majesty’s Courts and Tribunal Service
Probate (HMCTS) for a grant of probate confirming validity
of will and authority to act
- Gifts- ‘legacies’- gifts of personalty, ‘devise- gift of realty;’
‘legacy’- often used to cover realty and personalty
o Specific gift- specific item or items which the
testator owns
o General gift- item(s) corresponding to a description.
If the testator does not own the items at death, the
executors must obtain the item(s) using funds
obtained from the estate. Rare unless they consist of
gifts of money
o Demonstrative gift- gift that is general in nature
but is directed to be paid from a specific fund . if
there is no account (or less than 500 pounds), the
legacy is paid, in whole or part, from the rest of the
estate and to that extent is classified as general
o Pecuniary gift- gift of money
o Residuary gift- all the money and property left
after the testator’s debts, the expenses of dealing
with the estate and the other gifts made under the
will have all been paid
The - A testator must have the necessary capacity and
requirement intention and observe the formalities for execution in
for a valid Wills Act 1837
will
Capacity The test
- Must be 18 or over (with certain limited exceptions) and
have requisite mental capacity
- Banks v Goodfellow (1870)- ‘soundness of mind,
memory and understanding’. Testator must understand:
o The nature of their act and its broad effects (making
a will which will have effect on their death
o The extent of their property (do not have to recollect
every item)
o The moral claims they ought to consider
,WLLS AND ADMINSTRATION NOTES
- Should not be suffering from insane delusion
- Must have capacity at the time they execute their wills
o Exception- Parker v Feltgate (1883)- a will can be
valid if the testator has capacity when they give
instructions for the will even if they lose capacity by
the time the will is executed
- The Mental Capacity Act (MCA 2005) and Banks v
Goodfellows test are consistent and MCA statutory test can
be a useful ‘cross-check’
- If a testator is mentally incapable of making a will, a
‘statutory will’ may be made on their behalf under the MCA
- The Court of Protection empowers an authorised perosn to
execute the will and gives effect to the ill by affixing the
court seal
- CP will require full details of the deceased, their deceased,
their family, property and previous wills and will approve a
draft if it’s in the testator’s best interests
The ‘golden rule’
- If the testator lacks capacity the will is void
- The Golden rule (Kenward v Adams (1975)):
o Solicitor should ask a medical practitioner to provide
a written report confirming that the testator has
testamentary capacity and ask the doctor to witness
the will
o Solicitor should record their own view of the
testator’s capacity in a file note and keep on file in
case it’s challenged
The burden of proof
The general rule
- General rule- it is for the person who is asserting that a will
is valid to prove it
- Executors can rely on a presumption (usually arises at
application for grant of probate)
Presumption of capacity
- Executors do not have to prove capacity, can rely on
presumption that the testator satisfied the mental capacity
test
- Burden shifts to challenger to prove lack of capacity
- Courts less likely to find they lacked capacity if a rational
will was prepared by an experienced, independent solicitor
who met T and explained the will to them
- Golden rule will make it hard to challenge
Intention Meaning of intention
- When the will is signed T must have general and specific
intention
- T must intend to make a will (as opposed to another doc)
and intend to make the particular will now being executed
(T must know and approve its contents)
, WLLS AND ADMINSTRATION NOTES
- T must know and approve the contents of the will at the
time when the will is executed (Parker v Felgate exception
applies)
The burden of proof
The general rule
- General rule- the person asserting the will is valid to prove
it
- Not necessary to prove intention because presumption of
knowledge and approval arises
Presumption of knowledge and approval
Presumption does not apply in the following situations:
- Testator blind/illiterate/not signing personally
o HMCTS will require evidence to prove knowledge and
approval before issuing grant of probate
o Include statement at the end of the will stating the
will was read over to the testator, or read by the
testator who knew and approved the contents
- Suspicious circumstances
o E.g. the will has been prepared by someone who is to
be a major beneficiary under its terms or who is a
close relative of a major beneficiary
o Must remove suspicion by proving that the testator
did not actually know and approve the will’s contents
o Wintle v Nye [1959]- limited intelligence, no
presumption of knowledge and approval
o Gil v Woodall [2010]- presumption did not apply
where the beneficiary played no part in the
preparation of the will
- A solicitor should not accept instructions from a third party
to draw up a will for a testator, should interview the
testator in absence of the third party
Force, fear, fraud, undue influence and mistake
- Prove one or more of the following to prevent some or all
of the will from being admitted to probate:
o Force or fear (through actual or threatened injury)
or
o Fraud
o Undue influence (intolerable pressure/coercions or
duress)
- Necessary to prove undue influence in relation to a will
- Evidence from family, friends and carers- high threshold
- Failure to substantiate their claim will be penalised in costs
Mistake
- Presumption does not apply if all or part of the will was
included by mistake
- Any words included without the knowledge and approval of
the testator will be omitted from probate
- Important to distinguish between actual mistake and
UNIT 1: Validity of Wills and Intestacy
CHAPTER 1: Validity of Wills and How Property Passes on Death
Introduction - Many valuable assets pass independently of the terms of
the will
- Do any assets pass outside the will?
- Has the deceased left a will? Is it valid?
- Intestacy rules- any assets which so not pass
independently or under a valid will fail to be distributed
- Administration of estates Act 1925- intestacy rules
Property Joint property
passing - Where property is held by more than one person as
outside the beneficial joint tenants, when one dies their interest passes
will and by survivorship to the surviving joint tenants
intestacy - Survivorship does not pass to tenants in common, passes
rules on their death under their will (or under the intestacy rules)
Insurance policies
- Benefit of simple policy of life assurance belongs to the
person who took it out
- On person’s death, the policy matures and insurance
company will pay the proceeds to the deceased’s PR’s-
they will distribute the money according to will terms or
intestacy rules
- Life assurance policy can be written in trust for specified
individuals, can also be transferred or assigned to named
beneficiaries when first taken out or at a later date
- Policy will not belong to policy holder
- On death, policy matures and insurance company will pay
proceeds to beneficiaries or trustees regardless of the
terms of the deceased’s will or the intestacy rules
Pension benefits
- If employee dies ‘in service’- lump sum calculated on the
basis of an employee’s salary paid by trustees of the
pension fund to members or dependants chosen at
trustees discretion
- Employees can leave letters indicating who they want to
benefit- not binding on the pension fund trustess
- Do not belong to employee
- Few pension schemes provide that the lump sum must be
paid to the employee’s PRs- then distribute according to
employee’s wills or the intestacy rules
Trust property
- Many equitable interests come to an end on the
beneficiary’s death
- Trust property will devolved according to the terms of the
trust and not the deceased life tenant’s will
Analysis of beneficial entitlements of death
- Deal with the deceased assets in the following order:
,WLLS AND ADMINSTRATION NOTES
o 1) Property passing outside the will
o 2) Property passing under the will
o 3) Any property not disposed of passing on intestacy
Wills - Testator/testatrix- a person making a will
terminology Usually follows this structure:
- Revocation clause- revokes prior wills
- Direction as to disposal of the body- no legal effect, let
friends and fam know
- Appointment of executors- (PRs)- collect T’s assets, pay
their debts and any inheritance tax and distribute the
remaining assets to whoever is entitled under the will.
Application to His Majesty’s Courts and Tribunal Service
Probate (HMCTS) for a grant of probate confirming validity
of will and authority to act
- Gifts- ‘legacies’- gifts of personalty, ‘devise- gift of realty;’
‘legacy’- often used to cover realty and personalty
o Specific gift- specific item or items which the
testator owns
o General gift- item(s) corresponding to a description.
If the testator does not own the items at death, the
executors must obtain the item(s) using funds
obtained from the estate. Rare unless they consist of
gifts of money
o Demonstrative gift- gift that is general in nature
but is directed to be paid from a specific fund . if
there is no account (or less than 500 pounds), the
legacy is paid, in whole or part, from the rest of the
estate and to that extent is classified as general
o Pecuniary gift- gift of money
o Residuary gift- all the money and property left
after the testator’s debts, the expenses of dealing
with the estate and the other gifts made under the
will have all been paid
The - A testator must have the necessary capacity and
requirement intention and observe the formalities for execution in
for a valid Wills Act 1837
will
Capacity The test
- Must be 18 or over (with certain limited exceptions) and
have requisite mental capacity
- Banks v Goodfellow (1870)- ‘soundness of mind,
memory and understanding’. Testator must understand:
o The nature of their act and its broad effects (making
a will which will have effect on their death
o The extent of their property (do not have to recollect
every item)
o The moral claims they ought to consider
,WLLS AND ADMINSTRATION NOTES
- Should not be suffering from insane delusion
- Must have capacity at the time they execute their wills
o Exception- Parker v Feltgate (1883)- a will can be
valid if the testator has capacity when they give
instructions for the will even if they lose capacity by
the time the will is executed
- The Mental Capacity Act (MCA 2005) and Banks v
Goodfellows test are consistent and MCA statutory test can
be a useful ‘cross-check’
- If a testator is mentally incapable of making a will, a
‘statutory will’ may be made on their behalf under the MCA
- The Court of Protection empowers an authorised perosn to
execute the will and gives effect to the ill by affixing the
court seal
- CP will require full details of the deceased, their deceased,
their family, property and previous wills and will approve a
draft if it’s in the testator’s best interests
The ‘golden rule’
- If the testator lacks capacity the will is void
- The Golden rule (Kenward v Adams (1975)):
o Solicitor should ask a medical practitioner to provide
a written report confirming that the testator has
testamentary capacity and ask the doctor to witness
the will
o Solicitor should record their own view of the
testator’s capacity in a file note and keep on file in
case it’s challenged
The burden of proof
The general rule
- General rule- it is for the person who is asserting that a will
is valid to prove it
- Executors can rely on a presumption (usually arises at
application for grant of probate)
Presumption of capacity
- Executors do not have to prove capacity, can rely on
presumption that the testator satisfied the mental capacity
test
- Burden shifts to challenger to prove lack of capacity
- Courts less likely to find they lacked capacity if a rational
will was prepared by an experienced, independent solicitor
who met T and explained the will to them
- Golden rule will make it hard to challenge
Intention Meaning of intention
- When the will is signed T must have general and specific
intention
- T must intend to make a will (as opposed to another doc)
and intend to make the particular will now being executed
(T must know and approve its contents)
, WLLS AND ADMINSTRATION NOTES
- T must know and approve the contents of the will at the
time when the will is executed (Parker v Felgate exception
applies)
The burden of proof
The general rule
- General rule- the person asserting the will is valid to prove
it
- Not necessary to prove intention because presumption of
knowledge and approval arises
Presumption of knowledge and approval
Presumption does not apply in the following situations:
- Testator blind/illiterate/not signing personally
o HMCTS will require evidence to prove knowledge and
approval before issuing grant of probate
o Include statement at the end of the will stating the
will was read over to the testator, or read by the
testator who knew and approved the contents
- Suspicious circumstances
o E.g. the will has been prepared by someone who is to
be a major beneficiary under its terms or who is a
close relative of a major beneficiary
o Must remove suspicion by proving that the testator
did not actually know and approve the will’s contents
o Wintle v Nye [1959]- limited intelligence, no
presumption of knowledge and approval
o Gil v Woodall [2010]- presumption did not apply
where the beneficiary played no part in the
preparation of the will
- A solicitor should not accept instructions from a third party
to draw up a will for a testator, should interview the
testator in absence of the third party
Force, fear, fraud, undue influence and mistake
- Prove one or more of the following to prevent some or all
of the will from being admitted to probate:
o Force or fear (through actual or threatened injury)
or
o Fraud
o Undue influence (intolerable pressure/coercions or
duress)
- Necessary to prove undue influence in relation to a will
- Evidence from family, friends and carers- high threshold
- Failure to substantiate their claim will be penalised in costs
Mistake
- Presumption does not apply if all or part of the will was
included by mistake
- Any words included without the knowledge and approval of
the testator will be omitted from probate
- Important to distinguish between actual mistake and
