Wills and Administration of Estates notes
1. The succession of the estate and the will
2. Distribution under the Intestacy Rules
3. Grant of representation
4. Administrating the Estate: Duties and Powers of PR’s
1. The succession of the estate and the will
The succession estate- this is the assets owned by the deceased that will form part of the
pool of assets that will be distributed to the deceased heir(s)
These are excluded from the pool:
Property held with others as joint tenants- this is because of the operation of
‘survivorship.’ Immediately upon the death of a joint tenant, the surviving joint
tenant will receive the deceased joint tenants share of the property.
Life insurance policies written ‘in trust’- life insurance policies are typically written ‘in
trust’ for the benefit of a nominated person (e.g. a spouse). That person (beneficiary
of the trust) will receive the insurance pay-out when the insured person dies.
Discretionary pension schemes and benefits- sometimes, a person with a pension
scheme will have nominated a named third party benefit that will be entitled to
receive money from that pension scheme once the deceased is dead
DMC- this refers to a gift made by the donor in anticipation of their own impending
death. Takes immediate effect once they die.
Trusts and settlements- the distribution of trust property is governed by the deed
that created the trust
When trying to decide who is entitled to take assets following a death, always deal with
assets in the following order:
1. Property passing independently of the will and intestacy rules (e.g. joint property,
insurance policies)
2. Property passing by will
3. Property undisposed of by will and therefore passing under the intestacy rules
, The Will
For a will to be valid testator (person making the will/ giving away their legacy) must have:
1. Capacity
2. Intention
3. Compliance with the Wills Act (1873)
Capacity Testator must be over 18
Have had the requisite mental capacity per the test in Banks v Goodfellow
Must have “soundness of mind, memory and understanding – able to
understand
The testator must understand:
- The nature of his act and its broad effects
- The extent of his property
- The moral claims he ought to consider (even if he decides to reject such
claims and dispose of his property to other beneficiaries)
In addition, T must not be suffering from any insane delusion which affects the
disposition of property.
The testator under common law must prove they had the mental capacity to
make the will although this is usually easy to show, as long as they showed no
signs of mental confusion. It will be presumed they had capacity. Should there
be any doubt, the Banks v Goodfellow test will be applied.
The Mental Capacity Act 2005 applies post April 2007. S1(2)provides that ‘or
the purposes of this Act a person must be assumed to have capacity unless it is
established that he lacks capacity’. Statute prevails over the case law, but the
Banks case is still good law nonetheless.
NOTE: When someone is elderly or ill, you should have a medical practitioner witness
the signing of the will with the ability to assess the testator’s capacity and keep a
record of their assessment to confirm that the testatrix has capacity.
Intention Testator must: 1) have general intention to make a will and 2) the specific
intention to make the particular will they are writing and signing (i.e. not been
coerced into signing)
Intention is presumed if testator is of sound capacity
The burden of proving the testator’s knowledge and approval falls on the
person putting forward the will, but theres a presumption which will usually
assist.
The presumption is if T has the capacity, read and executed the will is
presumed to have the knowledge and approval. But this presumption does not
apply in the following situations:
- T is blind/ illiterate/ not signing personally- necessary to provide evidence
to prove knowledge and approval. Usually include a statement at the end
to approve of the contents.
- Suspicious circumstances- often arises where someone who is not close to
the testator is a major beneficiary.
, - Force, fear, fraud, undue influence and mistake- the burden of proof is on
the person alleging the circumstances. Lifetime gifts have a presumption of
undue influence and require the donor to rebut this presumption. Wills do
not have this presumption as the testator is no longer able to clarify gifts
once the will is executed and the burden therefore falls on those
contesting it.
NOTE: where this occurs after death, the person contesting the will must gain
information from those close to the testator, to be used as evidence to support their
case.
Mistake- any words which the testator did not have knowledge or approval of will be
omitted from the probate. Words which the testator misunderstands as to the true
legal meaning of do not fall under this category. They will not be omitted.
Compliance with Formality requirements are set out in S9 Wills Act (1973)
Wills Act (1973) - (a) the will must be in writing and signed by the testator
- (b) the will must be witnessed and signed by two or more witnesses
o Both witnesses must be present when testator signs
o Testator must be present when each witness signs
o If a beneficiary of a will (or a person who is a spouse of the
beneficiary at the time of execution) should not act as witness. If they
do, that beneficiary will be unable to inherit under that will. Although
the rest of the will remains valid under S15 Wills Act (1937).
- (c) if a will contains an attestation clause (a clause explaining the circumstances
under which the will was executed), there will be a presumption that S9 Wills Act
(1937) has been complied with and the will has been properly executed.
Incorporating documents into a will
When a document is ‘incorporated’ into a will, it means that the document will form part of
the will (and it will therefore be admitted to probate (probate means prove or validate. If a
will has been admitted to probate this means the Court has approved it as valid. i.e.
confirmed it is the last will of the testator and that its been properly executed) even though
it doesn’t comply with the formality requirements explained before. For a document to be
incorporated:
It must be clearly identified in the will
It must exist at the date of execution of the will
Its existence at that date must be confirmed in the will
Altering a will
, ◧ If a will has been altered AFTER its been made it is invalid.
◧ If it was altered BEFORE the will was executed it is valid.
◧ To properly attest an alteration, it is sufficient for the testator and the 2 witnesses to
sign their initials next to the alteration.
◧ The alterations are properly executed like a will (initials of testator and witnesses in a
margin beside alteration suffice): a codicil.
◧ Invalid alteration means original wording stands
o Original gift can take effect provided the wording is still apparent (can be
read).
o If wording cannot be read, then the words are deemed to be revoked by
destruction – but rest remains valid if it can be read.
o Court may decide intention to revoke was conditional – only if substitution
took effect.
◧ Alteration republishes the will as if it was made on that date (this is important for
identifying specific property such as “my car/house/watch”)
◧ Court may decide that T intention to revoke obliterated words was conditional only
e.g. where the testator wanted to replace obliterated words with a substitution &
intended to revoke the original words only if the substitution was effective. As it is
not, original words remain valid & if they can be reconstructed..from copy or draft,
will takes effect.
◧ Examples of alterations which work and don’t work:
- Tamal makes a will which leaves ‘£10,000 to my nephew Nalin.’ After executing the will,
Tamal decides he wants to change the legacy to Nalin.’
(1) He draws a thin line through ‘£10,000’ and writes above it ‘£20,000.’ This is an
unexecuted alteration and the will have no effect. The gift remains a gift of £10,000.
(2) He does exactly the same thing but writes his name next to the alteration and gets two
people to witness his signature. This is an executed alteration and takes effect to alter the
gift to £20,000.
(3) He draws a thick line through ‘£10,000’ in such a way that the original wording is wholly
unreadable. This is an obliteration it will be treated as revoking the original gift. The gift is
treated as a gift of nothing.
(4) He does the same thing and writes ‘£20,000’ above the obliteration. This is an
obliteration and would be treated as revoking the original gift were it not for the fact that
Tamal as substituted words.
A court is likely to conclude that Tamal’s intention to revoke the original gift was conditional
on the substitution being able to take effect. As the substitution isn’t effective, the original
gift will take effect.
Revoking a will
1. The succession of the estate and the will
2. Distribution under the Intestacy Rules
3. Grant of representation
4. Administrating the Estate: Duties and Powers of PR’s
1. The succession of the estate and the will
The succession estate- this is the assets owned by the deceased that will form part of the
pool of assets that will be distributed to the deceased heir(s)
These are excluded from the pool:
Property held with others as joint tenants- this is because of the operation of
‘survivorship.’ Immediately upon the death of a joint tenant, the surviving joint
tenant will receive the deceased joint tenants share of the property.
Life insurance policies written ‘in trust’- life insurance policies are typically written ‘in
trust’ for the benefit of a nominated person (e.g. a spouse). That person (beneficiary
of the trust) will receive the insurance pay-out when the insured person dies.
Discretionary pension schemes and benefits- sometimes, a person with a pension
scheme will have nominated a named third party benefit that will be entitled to
receive money from that pension scheme once the deceased is dead
DMC- this refers to a gift made by the donor in anticipation of their own impending
death. Takes immediate effect once they die.
Trusts and settlements- the distribution of trust property is governed by the deed
that created the trust
When trying to decide who is entitled to take assets following a death, always deal with
assets in the following order:
1. Property passing independently of the will and intestacy rules (e.g. joint property,
insurance policies)
2. Property passing by will
3. Property undisposed of by will and therefore passing under the intestacy rules
, The Will
For a will to be valid testator (person making the will/ giving away their legacy) must have:
1. Capacity
2. Intention
3. Compliance with the Wills Act (1873)
Capacity Testator must be over 18
Have had the requisite mental capacity per the test in Banks v Goodfellow
Must have “soundness of mind, memory and understanding – able to
understand
The testator must understand:
- The nature of his act and its broad effects
- The extent of his property
- The moral claims he ought to consider (even if he decides to reject such
claims and dispose of his property to other beneficiaries)
In addition, T must not be suffering from any insane delusion which affects the
disposition of property.
The testator under common law must prove they had the mental capacity to
make the will although this is usually easy to show, as long as they showed no
signs of mental confusion. It will be presumed they had capacity. Should there
be any doubt, the Banks v Goodfellow test will be applied.
The Mental Capacity Act 2005 applies post April 2007. S1(2)provides that ‘or
the purposes of this Act a person must be assumed to have capacity unless it is
established that he lacks capacity’. Statute prevails over the case law, but the
Banks case is still good law nonetheless.
NOTE: When someone is elderly or ill, you should have a medical practitioner witness
the signing of the will with the ability to assess the testator’s capacity and keep a
record of their assessment to confirm that the testatrix has capacity.
Intention Testator must: 1) have general intention to make a will and 2) the specific
intention to make the particular will they are writing and signing (i.e. not been
coerced into signing)
Intention is presumed if testator is of sound capacity
The burden of proving the testator’s knowledge and approval falls on the
person putting forward the will, but theres a presumption which will usually
assist.
The presumption is if T has the capacity, read and executed the will is
presumed to have the knowledge and approval. But this presumption does not
apply in the following situations:
- T is blind/ illiterate/ not signing personally- necessary to provide evidence
to prove knowledge and approval. Usually include a statement at the end
to approve of the contents.
- Suspicious circumstances- often arises where someone who is not close to
the testator is a major beneficiary.
, - Force, fear, fraud, undue influence and mistake- the burden of proof is on
the person alleging the circumstances. Lifetime gifts have a presumption of
undue influence and require the donor to rebut this presumption. Wills do
not have this presumption as the testator is no longer able to clarify gifts
once the will is executed and the burden therefore falls on those
contesting it.
NOTE: where this occurs after death, the person contesting the will must gain
information from those close to the testator, to be used as evidence to support their
case.
Mistake- any words which the testator did not have knowledge or approval of will be
omitted from the probate. Words which the testator misunderstands as to the true
legal meaning of do not fall under this category. They will not be omitted.
Compliance with Formality requirements are set out in S9 Wills Act (1973)
Wills Act (1973) - (a) the will must be in writing and signed by the testator
- (b) the will must be witnessed and signed by two or more witnesses
o Both witnesses must be present when testator signs
o Testator must be present when each witness signs
o If a beneficiary of a will (or a person who is a spouse of the
beneficiary at the time of execution) should not act as witness. If they
do, that beneficiary will be unable to inherit under that will. Although
the rest of the will remains valid under S15 Wills Act (1937).
- (c) if a will contains an attestation clause (a clause explaining the circumstances
under which the will was executed), there will be a presumption that S9 Wills Act
(1937) has been complied with and the will has been properly executed.
Incorporating documents into a will
When a document is ‘incorporated’ into a will, it means that the document will form part of
the will (and it will therefore be admitted to probate (probate means prove or validate. If a
will has been admitted to probate this means the Court has approved it as valid. i.e.
confirmed it is the last will of the testator and that its been properly executed) even though
it doesn’t comply with the formality requirements explained before. For a document to be
incorporated:
It must be clearly identified in the will
It must exist at the date of execution of the will
Its existence at that date must be confirmed in the will
Altering a will
, ◧ If a will has been altered AFTER its been made it is invalid.
◧ If it was altered BEFORE the will was executed it is valid.
◧ To properly attest an alteration, it is sufficient for the testator and the 2 witnesses to
sign their initials next to the alteration.
◧ The alterations are properly executed like a will (initials of testator and witnesses in a
margin beside alteration suffice): a codicil.
◧ Invalid alteration means original wording stands
o Original gift can take effect provided the wording is still apparent (can be
read).
o If wording cannot be read, then the words are deemed to be revoked by
destruction – but rest remains valid if it can be read.
o Court may decide intention to revoke was conditional – only if substitution
took effect.
◧ Alteration republishes the will as if it was made on that date (this is important for
identifying specific property such as “my car/house/watch”)
◧ Court may decide that T intention to revoke obliterated words was conditional only
e.g. where the testator wanted to replace obliterated words with a substitution &
intended to revoke the original words only if the substitution was effective. As it is
not, original words remain valid & if they can be reconstructed..from copy or draft,
will takes effect.
◧ Examples of alterations which work and don’t work:
- Tamal makes a will which leaves ‘£10,000 to my nephew Nalin.’ After executing the will,
Tamal decides he wants to change the legacy to Nalin.’
(1) He draws a thin line through ‘£10,000’ and writes above it ‘£20,000.’ This is an
unexecuted alteration and the will have no effect. The gift remains a gift of £10,000.
(2) He does exactly the same thing but writes his name next to the alteration and gets two
people to witness his signature. This is an executed alteration and takes effect to alter the
gift to £20,000.
(3) He draws a thick line through ‘£10,000’ in such a way that the original wording is wholly
unreadable. This is an obliteration it will be treated as revoking the original gift. The gift is
treated as a gift of nothing.
(4) He does the same thing and writes ‘£20,000’ above the obliteration. This is an
obliteration and would be treated as revoking the original gift were it not for the fact that
Tamal as substituted words.
A court is likely to conclude that Tamal’s intention to revoke the original gift was conditional
on the substitution being able to take effect. As the substitution isn’t effective, the original
gift will take effect.
Revoking a will
