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Summary WILLS AND PROBATE| SQE2
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Wills and probate notes to prepare for your SQE assessment. Prepare for your SQE exam for less. I achieved a 84% on my first sitting of the SQE2 relying solely on these notes.
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WILLS AND PROBATESUCCESSION
PROPERTY PASSING INDEPENDENTLY OF THE WILL AND INTESTACY RULES
certain types of property pass independently of the will either because they have their own
rules of succession or because the testator did not own them bene cially at death (eg, life
assurance policies written in trust).
joint property Where property is held by more than one person as joint tenants in equity,
on the death of one joint tenant his interest passes by survivorship to the
surviving joint tenant
nominated property There are statutory provisions allowing individuals to ‘nominate’ what is to
happen to certain types of funds after the nominator’s death. The statutory
provisions apply to deposits not exceeding £5,000 in certain trustee
savings banks, friendly societies, and industrial and provident societies.
insurance policies simple policy of life assurance - bene ts belong to him
life assurance policy for the bene t of speci ed individuals:
a) Under the terms of the Married Women’s Property Act 1882, s 11. Under
this section, a person taking out a life assurance policy on his own life may
express the policy to be for the bene t of his spouse and/or children. This
creates a trust in favour of the named bene ciaries.
b) Alternatively, a policy may be expressly written in trust for or assigned to
named bene ciaries.
pension bene ts Such pension bene ts do not belong to the employee during his lifetime
and pass on death independently of the terms of any will and of the
intestacy rules.
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,1. REQUIREMENTS OF A VALID WILL
capacity => In order to make a valid will, an individual must be aged 18 or over and
must have the requisite legal and mental capacity.
Banks v Goodfellow de ned testamentary capacity. The testator must
understand:
A. the nature of his act and its broad e ects;
B. the extent of his property (although not necessarily recollecting every individual
item); and
C. the moral claims he ought to consider (even if he decides to reject such claims
and dispose of his property to other bene ciaries).
Establishing capacity => where a person generally showed no sign of mental
confusion, it will be presumed that capacity existed at the time the will was made. If,
however, there is anything to put his capacity in doubt, the presumption will not apply
and the PRs will have to prove capacity on the basis of the Banks v Goodfellow test.
A person lacks capacity if:
- The person is unable to make a decision for themselves in relation to the matter in
question,
- Because of an impairment of, or a disturbance in the functioning of, the mind or brain
Material time -> the moment when the testator executed the will
Even if the testator did not have the adequate mental capacity at the date of execution,
as long as he had su cient capacity at the time of giving instructions to the will drafter,
and later understood they were signing a will, the testator will be deemed to have
acted with capacity.
If you suspect that your client has reduced capacity, contact their doctor and to prevent any
challenge to the will at a later date, you arrange for the doctor to be present at the signing of
the will. The doctor should either sign as a witness or provide a note con rming that the client
at the time of execution was capable of understanding the nature and e ect of the will. You
should also make a le note of the circumstances existing at the time of execution of the will.
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, intention => When the will is signed, the testator must have both general and speci c
intention:
- general intention to make a will
- speci c intention to make the particular will now being executed [he must know and
approve of the content]
A testator who has capacity and has then read and executed the will is presumed to
have the requisite knowledge and approval.
However, this presumption does not apply in the situations listed below.
• testator is blind/illiterate/not signing personally -> In these cases, the probate
registrar will require evidence to prove knowledge and approval (special attestation
clause)
• suspicious circumstances -> g, the will has been prepared by someone who is to
be a major bene ciary under its terms. In such cases, because the presumption
does not apply, the person putting forward the will must remove the suspicion by
proving that the testator did actually know and approve the will’s contents.
• Duress -> occurs when the testator has been injured or threatened with injury
‣ such a will only be admitted to probate if a court pronounces it as valid and
issues a grant in solemn form
‣ the executor (or any person interested in the will) propounds the will (to take
legal action to have it authenticated as part of the probate process) in a claim in
which they ask the court to determine the validity of the will
✤ Force, fear, fraud, => A will is invalid if it is shown that the testator made the
will (or part of it) as a result of force or fear (through actual or threatened
injury), or fraud (eg, after being misled by some pretence) or undue in uence
(where the testator’s freedom of choice was overcome by intolerable pressure,
even though his judgement remained unconvinced).
✤ undue in uence -> something that overpowers the volition of the testator. It is
permissible to persuade a testator but not to coerce them. The court is more
inclined to nd undue in uence when the testator is physically or mentally
weak.
• mistake => All or part of the will may be included by mistake. Any words included
without the knowledge and approval of the testator will be omitted from probate. In
this respect, it is important to distinguish between actual mistake (ie absence of
knowledge and approval) and misunderstanding as to the true legal meaning of
words used in the will. In the latter case mistaken words will not be omitted. The
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, court may however interpret the words used in a way which allows it to give e ect
to the intention of the testator.
FORMALITIES
Section 9 of the Wills Act 1837 (as substituted by Administration of Justice Act
1982, s 17)
No will shall be valid unless—
(a) it is in writing, and signed by the testator, or by some other person in his
presence and by his
direction; and
(b) it appears that the testator intended by his signature to give e ect to the will;
and
(c) the signature is made or acknowledged by the testator in the presence
of two or more witnesses
present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other
witness), but no form of attestation shall be necessary.
proof => attestation clause => included to con rm the above requirements.
“Signed by the testator in our presence and then by us in his”
If the will does not contain an attestation clause, the district judge (or registrar) must
require an a davit of due execution from a witness or any other person who was
present during the execution, or, failing that, an a davit of handwriting evidence to
identify the testator’s signature, or refer the case to a judge.
Signature requirements:
• Initials,
• A stamped signature,
• A mark such as a cross, (for someone unable to write)
• An un nished signature,
• A signature in pencil, and
• The words “your loving mother”.
• A person other than the testator may sign on the testator’s behalf provided the
signature is made in the presence of, and by the direction of, the testator.
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