Wills 1 skeleton PDF

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Wills 1 -

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Succession to property on death: o What passes by will and intestacy: disposal of estate and property  Cash/ money accounts/ will, then intestacy/ others Independent to will and intestacy rules o Joint property: property held by more than one person as JT in equity, on death of one, interest passes by survivorship to JT. (not for JT in common or shares under will). o Nominated property: individual nominate what happens to property on death. o Insurance policies: life assurance, benefit of policy on death by will or intestacy. o Person benefit: pension scheme on employee death applies, trustees in funds etc. Requirements for valid will: testator has necessary capacity and intention and observes formalities of Wills Act 1837 – subsequent marriage can revoke (or destruction or later will). o Capacity: valid, over 18 and mental capacity  Banks v Goodfellow (1870) LR 5 QB 549 – test for mental capacity.  No delusions affecting disposition of property.  Proof and presumptions: assumed to have capacity unless otherwise established – Mental Capacity Test Act 2005 s1(2). o Intention: signed by testator having general and specific intention. Testator intends particular will be executed.  Proof and presumptions: burden of testator’s knowledge/ approval on person putting will forward. Will be questioned when –  Testator blind/ illiterate/ not personally singing  Suspicious circumstances – Gill v Woodall [2010] EWCA Civ 1430.  Solicitor acts with honesty and good integrity, good faith with clients best interests – no abuse of position. o Force, fear, fraud, undue influence and mistake: testator has capacity and these proven to have existed for challenge by applicant.  Undue influence need be present to succeed.  Mistake: may be included by mistake so distinguish mistake and misunderstanding of legal words. Formalities for execution of valid will – S9 Wills Act 1837. o Not will valid unless –  In writing and signed by testator or by some other person in his presence and by his direction  Appears testator intended signature to give effect to will  Signature made or acknowledged by testator in presence of two or more witnesses present at same time  Each witness (in presence of testator)  Attests and signs will or

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 Acknowledges signature. o Exception: made on active military service or mariner or seaman at sea and can be oral statement (s11). o Proof and presumptions: execution presumed where clause reciting s9 formalities included. Where not, may need affidavit. o Witness: no formal requirements but need understand significance of being witness to signature. Witness who benefits from will, will have gift fail (s15). Revocation: testators may revoke will in lifetime where testamentary capacity. o By later will/ codicil (s20): express term revoking previous will. o By marriage or civil partnership (s18) automatically revokes previous will.  S18(3) can have clause intending not to revoke entitled to ex partner.  Divorce: s18(A) – where testator divorce or dissolved, will valid but gift to partners not unless express otherwise intended. o By destruction (s20): burning, tearing or otherwise destroying by testator or person in his presence by his direction. Needs intention.  Physical destruction.  In testator’s presence and by his direction.  Relative revocation by court to save will where intention dependant on future event, will not be destroyed until this. Alterations: valid unless made before execution or alterations executed in will. Court may determine revocation was conditions. Will taking effect: those dealing with estate decide what happens – identify those prescribed in will, estate executor’s and administrators as PRs. o Property passing as gift under will: some passes outside of will due to succession or testator not owning them on death.  S24 basic rule: everything in will unless expressed otherwise is intended to pass.  Ademption: legacy fails or testator no longer owns on death = fails. o Beneficiary surviving testator: gift will fail or lapse if beneficiary dies before testator.  Residue property for legacy.  Intestacy rules where gift of residue lapses.  Passes when beneficiary survives.  S184 LPA 1925: where deaths close together, who died first? Succession fails if at same instant. Older deemed as dying first, if testator eldest, gift succeeds.  Scarle v Scarle [2019] EWHC 2224 (Ch).  Survivorship clause: 28 survivorship period clause  Lapse of gift to numerous individuals: gift to two or more JT do not lapse unless all donees die before testator.  Wills Act 1837 s33: gift to children and remoter issue – pass unless contrary issue shown and survivorship clause. Reasons for gift failing o S18(a) WA: dissolution or divorce – treated as dying before testator. o S15: Beneficiary witness.

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o Disclaimer – need not accept unless already accepted. o Forfeiture – public policy not to inherit - Forfeiture Act 1982. o Estates of Deceased Persons Act 2011 s33(a). Identifying beneficiaries o Class of beneficiaries – gift to class, not partners where doubt. o Reading v Reading [2015] EWHC 946 (Ch) – evidence for intentions to inherit o Descendants o S15 Gender Recognition Act – full gender recognition certificate allows to inherit even where not gender at time of gift. Effect of intestacy rules o Administration of Estates Act 1925: entitlement after death where no will but could have been if one made. o Statutory payment of debts: s33 AEA – PR pays funeral, debts and administration fees from estate. Residuary estate shared amongst family s46. o Spouse or civil partner issue: person whom testator married to on death. Issues = children/grandchildren/adopted. o Entitlements: estate survived by spouse or civil partner and issue, residuary estate distributed by s55(1)(x) AEA 1925.  Statutory legacy 270k  Rest of residuary estate divided in half  Spouse need survive 28 days following testator’s death. o Statutory trusts: class of beneficiaries  Primary beneficiaries – children of intestate on death  Interests of children contingent on being 18  Child predeceased intestate  Child/ issue survive but die without vested interest, estate divided as if issue did not exist (s3 Estates of Deceased Persons Act 2011). o Right of spouse to acquire proportion of matrimonial home (s5 Intestate’s Estates Act 1952) o Spouse or civil partner and no issue – whole estate passes to spouse absolutely – if survive 28 days. o Distribution where no surviving spouse or civil partner: residuary estate divided amongst related following list. o Statutory trusts: other than parents/ godparents of specified class share estate equally and take relatives share – no mention = no inheritance. Need be 18. o Adopted illegitimate children: same as natural children. Intestacy applies regardless of marriage. o Bona vacantia: Duchy of Lancaster or Duke of Cornwall has discretion to provide for dependants of intestate or others reasonably expected to inherit. Inheritance Act 1975 : those left out of will and feel aggrieved can make claim o Make within 6 months of date of issue of grant of representation to deceased’s estate (s4) – court discretion to extend.  S1(1) who can make claim.

S1(2)(a) what need applicant prove – spouse can make financial provision application. 1(2)(b) ordinary standard to all others for maintenance. o Factors considered: s3(1) financial resources and applicants need etc.  Common and special guidelines – s3(5) facts at hearing and financial resources and needs of applicant. Earning capacity and financial obligations and responsibilities (s3(6)). o What orders can the court make? Discretion to net estate – property of deceased but those passing by survivorship. o Protection of PRs: wait 6 months; advertise; insurance; do not distribute where claim; liability passes to PRs after time and estate settled. Personal Representatives – deceased’s executors or intended administrators o Executors – valid will appoints by will, grant of probate. o Administrators with will annexed – valid will but no will/able executor. o R22 intestacy where no appointment in will. o No. required: one can act alone, life/ minority interest or under 18 = 2. o Authority before grant: need grant to take full power. First steps after instructions – time of essence o Concerns:  Valid will? Executors?  Directions on cremation  Details of assets and liabilities  Details of beneficiaries  Missing/ unknown creditors and beneficiaries  PRs need accurately administer estate  Issues – unknown relatives cannot be located  Unknown claims – PRs liability and protection o Early advertisement – 2 months notice; London Gazette; local newspaper to testator or where unknown beneficiary is. Land searches can be made. o When notice expires, estate can be distributed. o Consider holding back some funds, indemnity insurance, insurance to provide funds, application to court for Benjamin Order. Grant of representation o Authority to PRs by will/intestacy and handle assets. o Assets passing without grant  Administration of Estates (small payments) Act 1965 - assets not exceeding £5,000.  Discretionary.  IHT – paid before grant, may not be funds.  Chattels – personal property cam be moved without PR providing entitlement.  Cash – normally don’t need grant. o Assets not passing through PRs hands: joint property 

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o Property not forming part of deceased person’s estate – own life assurance but held on trust for others.  Paid to trustees on death  No need for grant as not under estate  No IHT as beneficial interest  Pension benefit Applying for grant - Apply to Principal Registry of Family Division or District Probate Registry o Attachment of numerous docs:  Form IHT421 confirming IHT payment or IHT205 if estate excepted.  Deceased’s will/ codicil with 2x A4 photocopies.  PA1P if will and PA1A where no will  Affidavit evidence when required  Probate court fees - £155 for estates over £5,000 o Admissibility of will to probate: check valid will  Will need be last will of testator  Not been validly revoked  Executed according to s9 WA  Attestation clause that will executed according to requirements. o Registrar’s additional requirements:  Affidavit of due execution  Affidavit as to knowledge and approval  Affidavit of plight and condition  Lost will – may obtain probate copy. Completing IHT account o Initial step in grant o IHT400 Form from PR where unexpected estate o Aim between 6-12 months, 6 month interest limit. o Payable on all property deceased beneficially entitled to immediately before death. o Tax rate 0% on nil rate band and 40% on balance, unless 10% of estate intended to pass to charity, reduced to 36%. o After October 2007: Spouses/ civil partners can inherit unused nil rate band. PRs of survivor need use s402 claim. o After April 2017: addition RNRB for those leaving residence/ interest in residence to lineal descendants. o IHT need be paid within 6 months (non-instalment time) from end of month in which death occurred (interest where failed). Valuations on IHT o Generally: assets valued at ‘price which property might reasonably be expected to fetch if sold in open market’ immediately before death (s160 IHTA 1984). o Jointly-owned assets – special valuation rule where deceased was co-owner of land on death.

Market value of land on death discounted reflecting difficultly to sell. Probate value of deceased’s interest discounted market value at date of death divided proportionately between co-owners. 15% residential; 10% investment property.  No discount where co-ownership of asset other than land.  Where co-owners spouses etc, related property rules apply – no discount. Funding IHT: PRs arrange amount sent to HMRC. o Direct payment scheme - IHT423 o Life assurance o Assets releasable without grant o Bank borrowing o National savings and government stock o Heritage property in lieu of tax o Obtaining grant on credit. IHT account: IHT (delivery accounts) (expected estates) regulations 2004: if estate is expected estate, no need for IHT400 but HMRC may still demand one – within 6 months of discovery. o 3 categories for expected estate for deaths on/after September 1st 2006  category 1: small estates  category 2: exempt estates specified transfers for Categories 1 and 2 o chargeable transfers of cash, personal chattels, tangible moveable property, quoted shares or securities, interest in or over land made in 7 years before death. o Valuing specified transfers: business and agricultural property relief ignored. Specified exempt transfers for categories 1 and 2 o Transfers of value made during 7 years before death exempt under numerous rules  s 18 (transfers between spouses (or civil partners));  s 23 (gifts to charities);  s 24 (gifts to political parties);  s 24A (gifts to housing associations);  s 27 (maintenance funds for historic buildings, etc); or  s 28 (employee trusts). o Category 2 – non-domiciled estates: treated as domiciled in UK by s267 IHTA 1984 and value no exceeding 150,00. o Form IHT400: deceased domiciled in UK and estate no ‘excepted estate’.  PRs complete and sign declaration contents true – calculate IHT and pay. HMRC receipt and return IHT421.  PRs apply to Probate Registry and file IHT421 with probate papers. Forms PA1P and PA1A o PA1 forms: Entitlements to grant where named executors in will. Confirms statutory duty (s25 AEA).  

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o Three forms of oath and statements of truth – three main grants of representation: probate, administration with will and simple administration. o Two forms of PA1: PA1 with will, irrespective of whether lead to grant of probate or letters of administration with will, and PA1 with no will. Commonalities between forms o Checklists o Identifying applicants – 4 max. o Identifying deceased o Applications by attorney – on behalf of person entitled to grant. o Foreign domicile: demonstrates who can deal with assets in UK where applicant is not. o IHT and probate estate: states which forms completed. o Legal statements – declarations and undertakings Form PA1P: will, irrespective of grant od probate or letters of administration. o Identification of will o Entitlement of executors  Lacking capacity  Minors  Former spouses/ civil partners  Renunciation – Form PA15  Power reserved  Entitlement of administrators to act – R20 NCPR  Clearing off – r20 and PA10  Beneficiary with vested interest preferred  Minors – cannot be administrator or apply for grant but parent/ guardian can on their behalf until 18 r27(5).  Number of administrators – max 4.  Renunciation  Completing PA1P:  s2 of form sets out basis of entitlement  s3: executors cleared off by explaining – o died before person who died o died after person who died o wish to have power reserved to apply at later date o have renounced o appointed attorney to take grant on their behalf o lack capacity as executor  s4: surviving relatives Form PA1A o Entitlement to act – r22 NCPR  Children s18(2) no distinction between legitimate/ natural born or adoption.  Brothers and sisters: whole blood and half blood  Uncles and aunts: whole blood and half blood

Clearing off – r22 NCPR Beneficial interest in estate to be entitled or r 22 NCPR and s46 AEA. Minors Renunciation Number of administrators  Max 4  Same category  2 where minority interest or held for minor on statutory trust Effect of grant o Probate – confirms authority from will and evidence of title of executors and validity and will contents. o Administration – authority with or without will annexed. No authority before grant. Limited grant o Normally general ie ‘all estate which by law devolved to vests in personal representatives of deceased’. o Grant may be limited to specific party of property, land, purpose. Chain of representation and grant DE BONIS NON o S114: if one dies, and at least two remain, surviving PRs continue. Where one left, another appointed by court. o S5 AEA: PR dies before taking grant, right to grant dies with them. o Chain of representation.  S7 AEA – passes to someone else in chain who can hold and become executor and may be executor of both estates of deceased PR and testator.  Unbroken chain: unbroken sequence  Broken chain: no successive executors – chain broken. Grant de bonis non administratis: chain does not apply as no successive providing executor, GDB needed for original estate. o Two requirements – must have been prior grant of probate or letters of administration to PR who has now died; chain of representation must not apply. o Grant de bonis non will issue to person who would have been entitled, had original PR never taken the grant. Order follows r20 and 22 priority. Caveats and citations o o o o o

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o Caveats NCPR r44: caveat seeks to prevent issue of grant. Person entering caveat is caveator – may be used where beneficiary believes executor named lacks capacity or will’s validity questioned. o Citations r46: only executors specific in r20/22 can take grant of representation. Where those entitled refuse and does not renounce, estate unadministered and beneficiaries waiting for inheritance.  

citation as remedy citation to take probate

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 citation to accept or refuse grant Alternative to citation o compelling unwilling person to take grant likely to bring more problems than solves as where unwilling will likely apply to Probate Registry by s116 Senior Courts Act for order to pass to someone else. o Re Biggs [1966] 1 AllER 358, an executor had intermeddled but then refused to have anything to do with the estate. The Probate Registry ordered that he be passed over....