Wills and Administration of Estates
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- Created by: lawstudent
- Created on: 27-12-20 15:28
What is an 'estate'?
An 'estate' is all of the property owned by a person at the point of their death.
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What types of property are not form part of the estate?
- Jointly owner property- where the deceased held the property as one of two or more joint tenants their property does NOT form part of the estate but passes directly to the other joint tenants under the survivorship rules. (NOTE for tax purposes, there i
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What happens to any unpaid debts on the estate?
any debts or liabilities must be identified. These must be met out of the estate before the remaining assets (the net estate) are distributed.
where the estate is insolvent the debts must be paid in a defined order.
where the estate is insolvent the debts must be paid in a defined order.
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What must be done at the date of death?
an accurate valuation of all the assets must be obtained. a schedule of assets and liabilities can then be produced.
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DISTRIBUTING THE ESTATE
- how the estate is distributed will depend upon whether or not the deceased left a Will, and whether that will cover all or only some of the estate.
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What does Testae mean?
There is a Will disposing of all of the deceased's property.
All the property is distributed according to the Will
All the property is distributed according to the Will
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What does totally Intestate mean?
There is no Will.
All property is distributed in accordance with the intestacy rules in the Administration of Estates Act 1925.
All property is distributed in accordance with the intestacy rules in the Administration of Estates Act 1925.
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Partially Intestate?
There is a Will that does not dispose of all of the deceased's property.
The Will is followed as far as possible. Any remaining property is distributed according to the intestacy rules.
The Will is followed as far as possible. Any remaining property is distributed according to the intestacy rules.
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VALIDITY OF THE WILL... What are the three requirements for a valid Will?
CAPACITY, INTENTION AND FORMALITIES.
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What is capacity?
The testator must be over 18 (unless they have privileged status)
The testator must have the requisite capacity (under s 1-3 Mental Capacity Act 2005)
Banks v Goodfellow- sets out the common law test 'soundness of mind, memory and understanding', which m
The testator must have the requisite capacity (under s 1-3 Mental Capacity Act 2005)
Banks v Goodfellow- sets out the common law test 'soundness of mind, memory and understanding', which m
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What is Intention?
The testator must have both a general intention to make a Will and the specific intention to make the particular will in question.
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What are the formalities?
The will must comply with s9 of the Wills Act 1937.
a) the will must be in writing and signed by the testator or by some other person in his presence and his direction.'
b) The testaor must have intended to give effect to the will;
c) the will must be s
a) the will must be in writing and signed by the testator or by some other person in his presence and his direction.'
b) The testaor must have intended to give effect to the will;
c) the will must be s
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What is an attestation clause?
This raises a rebuttable presumption that the formalities have been complied with.
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What are the main clauses disposing of the testator's property?
-General legacy
- Specific Legacy
- Demonstrative Legacy
Pecuniary Legacy
-Residuary Legacy
- Specific Legacy
- Demonstrative Legacy
Pecuniary Legacy
-Residuary Legacy
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What is a general Legacy?
A gift of an item, irrespective of whether the deceased owned that item at death, e.g. 'I give 50 shares in ABC Plc to X.'
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What is a specific legacy?
A gift of a particular asset owned by the deceased at death, e.g. 'I give all of my shares in ABC Plc to X.'
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What is a demonstrative legacy?
A general gift paid out of a specific fund, e.g 'I give £100 to be paid from my Barclays account'
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What is a pecuniary legacy?
A gift of a fixed sum of money, e.g 'I give £100 to X.'
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What is a residuary legacy?
The whole, or part, of what remains of a person's estate once all gifts, debts, taxes and other costs have been paid.
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When can revocation of a Will occur?
According to the principle of testamentary freedom, the testator is always able to revoke their will at any point before their death.
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How can revocation occur?
-Destruction
- Revocation by a later will/ codicil
-Marriage/ Civil Partnership
- Revocation by a later will/ codicil
-Marriage/ Civil Partnership
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Destruction-
The testator 'burning, tearing or otherwise destroying the Will,' or someone else doing so in his presence and by his direction, will revoke the Will as long as the testator intends to revoke the will by the act of destruction (s20 Wills Act 1837).
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Revocation by a later will/ codicil
The testator can include an express revocation clause (e.g. 'I hereby revoke all former wills').
Without an express revocation clause, the later will only revoke the former to the extent that it is inconsistent with the earlier will.
Without an express revocation clause, the later will only revoke the former to the extent that it is inconsistent with the earlier will.
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Marriage/ CP
A testator marrying or entering a civil partnership will automatically revoke and will made previously (ss18 and 18B Wills Act 1837), unless the testator makes it expressly clear that HJM will have effect after the marriage or where the marriage is itself
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What is a codicil?
Subsequent valid alterations to a Will. In order to be valid, they must be properly executed, complying with all of the same formalities as the original Will. (s21 Wills Act)
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Codicil considerations:
-Any amendments to the will must be signed by the testator and two witnesses. If this is done, it will raise a presumption that the changes were made prior to execution of the will.
-Where an alteration is invalid and the original wording remains apparent
-Where an alteration is invalid and the original wording remains apparent
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Codicil considerations contd
Where an alteration is invalid but the original wording is NOT APPARENT, then the will is normally admitted to probate with the original wording 'obliterated'- which means that the clause cannot take effect.
The only exception is if the obliteration is a
The only exception is if the obliteration is a
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How can legacies fail?
- Lapse
- Uncertainty
- Ademption
-Beneficiary witnessing the will
- Disclaimer
-Divorce/ dissolution of CP
- Uncertainty
- Ademption
-Beneficiary witnessing the will
- Disclaimer
-Divorce/ dissolution of CP
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What is lapse?
A gift will usually fail if the beneficiary predeceases the testator.
However, is the beneficiary is the issue of the testator, instead of lapsing the gift will pass to the beneficiary's issue (s33 WA 1837).
If two people die simultaneously, the younger
However, is the beneficiary is the issue of the testator, instead of lapsing the gift will pass to the beneficiary's issue (s33 WA 1837).
If two people die simultaneously, the younger
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What is uncertainty?
A gift will fail if either the objects (beneficiaries) or subject matter are uncertain.
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Ademption
Where the testator makes a specific legacy, it will fail if that specific item of property is not part of the testator's estate upon their death.
For ademption to apply there must have been a change of substance- not merely a change of name or form
For ademption to apply there must have been a change of substance- not merely a change of name or form
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Beneficiary witnessing the will
If either a beneficiary or their spouse witnesses the will, any gifts to the beneficiary will lapse unless there are two witnesses to the will other than the beneficiary or their spouse (s15 WA 1837). A solicitor may be negligent if they allow a beneficia
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Disclaimer
A beneficiary may disclaim a legacy (i.e refuse to accept the legacy if they have yet to take any benefit from it.)
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Divorce/ Dissolution of CP
Following divorce or annulment of a CP, any gift to a former spouse/ CP is treated as if the spouse or partner had predeceased the testator, and the gift, therefore, lapses, leaving the remained of the will unaffected. (ss18a & 18c WA1837).
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What is the effect of the failed legacies?
This depends on the type of legacy:
- where a specific, general, or demonstrative legacy fails the property forms part of the residue of the estate.
- Where a residuary legacy fails there is partial intestacy
- where a specific, general, or demonstrative legacy fails the property forms part of the residue of the estate.
- Where a residuary legacy fails there is partial intestacy
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DISTRIBUTION UNDER THE INTESTACY RULES
Where a person dies without a will (intestate), or their will fails to distribute all of the property in their estate (partially intestate), the remaining property will be distributed as follows:
(Refer to chart)
(Refer to chart)
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Surviving spouse/ CPs special rights on the deceased's intestacy
A surviving spouse of an intestate decedent has a right to the appropriation of the matrimonial home. In certain circumstances, the surviving spouse may retain the matrimonial home (Sch 2 Intestates Estates Act 1952). This applies where the matrimonial ho
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Surviving spouse contd...
NOTE: Where the home was owned jointly between the deceased and spouse as joint tenants it would pass to the surviving spouse under the survivorship rule.
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Statutory trusts (or trusts for sale)...
s33 Admin of Estates Act 1925
s33 Admin of Estates Act 1925
Under the statutory trusts, each child receives an equal share of the assets on reaching the age of majority (which is 18 under the Family Law Reform Act 1969) or on marriage if that is earlier.
During his or her minority, the child will benefit from bot
During his or her minority, the child will benefit from bot
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Other cards in this set
Card 2
Front
What types of property are not form part of the estate?
Back
- Jointly owner property- where the deceased held the property as one of two or more joint tenants their property does NOT form part of the estate but passes directly to the other joint tenants under the survivorship rules. (NOTE for tax purposes, there i
Card 3
Front
What happens to any unpaid debts on the estate?
Back
Card 4
Front
What must be done at the date of death?
Back
Card 5
Front
DISTRIBUTING THE ESTATE
Back
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