Wills and Intestacy
Validity of a will, representatives, alterations, revocation, intestacy rules, property passing outside the estate, probate and administration practice, grants of representation. Taxation – wills and the administration of estates. Core principles of Trust law and more.
SQE2 – Wills and Intestacy, Probate Administration and Practice
Assessments
Assessment Details
SQE2 oral Interview and attendance note / legal analysis
SQE2 written Legal drafting, legal writing, legal research, case and matter analysis
Wills and Intestacy
SQE2 Assessment Details
Specification
Validity of wills and codicils
English law will generally recognise a will as valid if (i) it accords with the internal law of the country in which it was executed or
(ii) the country in which the deceased was domiciled or (iii) was a national either at the time of execution or at the time of death.
According to English domestic law, a will requires capacity, intention and the presence of the prescribed formalities to be valid.
Testamentary capacity 18 or over (except “privileged” wills)
According to common law (Banks v Goodfellow), the traditional test for mental capacity to make a will requires showing that the
testators understood the following: (i) the nature of the act of making a will and its effects; (ii) the extent of their property; and (iii)
the claims to which they ought to give effect.
Per Mental Health Act, there is assumption of capacity unless at the material time (date the will is made) the testator is unable to
make a decision for his / herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the
mind or brain. Confirmed that test for testamentary capacity in probate is the common law test, not the Mental Health Act test.
Where testator loses capacity between giving the instructions for the will and execution, it must be shown that:
- Capacity existed at the date of giving instructions for preparation of the will;
- The will was prepared in accordance with those instructions; and
- At execution the testator understood he was signing a will for which instructions had previously been given.
Per common law, burden rests with person seeking to prove the will. Lack of capacity = will cannot be admitted.
Intention Testator must have had a general intention to make a will and the specific intention to make the will in question.
Burden of proof to the contrary rests with propounder of the will. Rebuttable presumption that a testator with capacity had
knowledge of and approved contents of will at execution, except where: (i) testator blind, illiterate or had will signed on their
behalf (special attestation clause required, stating the following: will was read over to testator in the presence of the witnesses +
testator understood and approved the will + testator then signed the will or it was signed by another in the testator’s presence and
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, at his direction + witnesses attested the will as before)1 / (ii) there are suspicious circumstances, especially if will benefits person
who prepared it (evidence of knowledge and approval of contents needed).
Formal requirements (except S9 of Wills Act 1937 (substituted by s17 of Administration of Justice Act):
for “privileged wills”) - Will must be in writing.
- Will must be signed with intent to give effect to the will (by testator / another in testator’s presence, as directed, i.e. there is
positive and discernible communication, which may be verbal or non-verbal, by testator that he wished the will to be signed on
his behalf by the 3P).
- Will must be signed / signature acknowledged in the presence of two or more witnesses (at the same time) who attest and
sign / acknowledge their signatures in the presence of the testator (former means seeing testator writing the signature; latter
means seeing the signature). Most wills contain an attestation clause although this is not required to consider the will valid. If
contains attestation clause (e.g. stating the document has been executed in the presence of one or more witnesses who attest the
execution), the task of proving the formal validity of the will is straightforward, as it will be presumed that the will has been
executed in accordance with s9 of the Wills Act (i.e. there is presumption of due execution).
Duress and undue influence Duress: Wrongful pressure exerted in order to coerce a person into signing what he / she ordinarily would not enter.
Undue influence: Precise rule varies by state, but typically means influence specially exerted to procure the will in question, which
induce / coerce a testator to subscribe and execute the will. Mental force has been exercised as prevented free agency. Usually by
taking advantage of another person through a position of trust.
Personal representatives
The appointment of See under “Need for grant”.
executors
Renunciation and reservation
Executor has right to renounce by filing a signed statement with the Registry, which is lost on taking grant / intermeddling.
of power
Alternatively, executor may reserve power and sit out administration of estate (i.e. will not be involved in the application for grant
and thus will not be entitled / required to take part in the process of dealing with testator’s affairs); does not preclude them from
applying for a grant later if circumstances change.
Administrator only accepts office by taking a grant and can renounce by filing a signed statement with the Registry; this does not
preclude them from claiming a grant in another capacity.
Alterations and amendments to wills
Effect of alterations made to Effective if (s21 of Wills Act):
wills both before and after - Made before will execution,
execution - Made after will execution, but the alteration was itself duly executed,
- The original will including alteration is later re-executed / confirmed by a codicil,
1Attestation is, in effect, the validation of the testator’s signature. The witnesses need not sign (or acknowledge) in each other’s presence, though in practice this is
what usually happens. However, the presence of the testator (bodily and mentally) is required when the signature / acknowledgement is made.
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, - The original wording / effect of the will is not apparent after alteration.
All other alterations ineffective.
If original wording of a will is apparent even after an invalid alteration, it will be admitted to probate; if not, will is admitted with a
blank space where obliteration has occurred.
Advisable for testators not to make their own adjustments to wills, to initial all alterations whatsoever (as well as having witnesses
initial them) and to make and execute a new will if alterations substantial.
Incorporations: Documents can be incorporated into the will where it existed when the will was made, and is clearly identified in
the will and referred to as existing at the time.
Use of codicils A codicil is used to add to, amend, or partially revoke the terms of an existing will. The requirements for a valid codicil are the
same as those required for a valid will.
Revocation of wills
Methods of revocation There is general discretionary power of revocation at any time during testator’s lifetime via deliberate act of testator through (i)
later will / codicil or (ii) act of destruction, while testator retains capacity and had intention.
Revocation may occur automatically by operation of law in case of:
- Marriage / civil partnership, i.e. if testator has married after executing a will, that marriage will generally revoke that will
(except where when will was made the marriage was anticipated and/or an express declaration in the will preventing
revocation).
- Divorce, i.e. any provisions in will as to the appointment of the former spouse as executor / trustee take effect as if the former
spouse had died on the date upon which the marriage is dissolved / annulled, and will thus be ineffective. Further, any
property that is given by the will to the former spouse passes as if they spouse had died on that day, and will thus not pass to
the former spouse.
- Dissolution or nullity of civil partnerships (separation alone does not revoke a will), i.e. former civil partner will be treated as
if they had died on the day upon which the dissolution or nullity takes effect, and subject to a contrary intention in the will, any
gift / appointment of them as an executor will be ineffective.
- By deliberate act of the testator by later will or codicil (a later will / codicil impliedly revokes an earlier testamentary
disposition only to the extent that it is inconsistent with / merely repeats the terms of the earlier document. Common and
helpful to contain an express revocation clause).
- By destruction (act of destruction + intention to revoke).
Conditional: Sometimes, revocation is regarded as conditional only. If so, revocation will not be effective unless and until the
condition is met e.g. condition might be validity of a new will.
Mutual wills: Qualification to principle of revocability is the equitable doctrine of mutual wills. Mutual wills are wills made by
two or more persons, usually substantially the same and conferring reciprocal benefits with an agreement between them to make
such wills and not to revoke them without consent of the other. There must be an agreement between the testators that the wills
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