(Legal Foundations p.344)

When deciding who is entitled to take assets following a death, always deal with the assets in the following order:

Property passing independently of the will and intestacy rules;
Property passing by will;
Property undisposed of by will and therefore passing under intestacy rules

Joint Property P.344	If property held as JT in equity property passes by survivorship to the other JT; (houses, bank accounts etc.) This is unlike TICs where the share of the deceased pass under will or intestacy rules.
Nominated Property Page 344	A nomination is a direction to the institution to pay the money in the account, on the death of the investor, to a chosen (“nominated”) 3^rd party. Some statute allows an individual to nominate what happens to certain property/funds (e.g. trustee savings banks, friendly or industrial or provident societies) after death; Applies to deposit NOT exceeding 5,000; Few statutes allow new nominations to be made (those in existence are already valid).
Insurance Policies Page 344	Normally, on death life assurance policies will go to Personal Representative (“PRs”) for distribution in accordance with the will/intestacy rules; Life assurance policies can be expressed as for the benefit of a specified individual in two ways (so deceased doesn’t own property beneficially upon death): s.11 Married Woman’s Property Act 1882: can create a trust in favour of spouse and/or children; A policy expressly written in trust for assigned or named beneficiaries.
Pension Benefits Page 345	Death in Service Benefits (Employer pays a lump sum if employee dies), It is normally calculated with reference to the deceased’s salary and it is paid independently of the will by the pension fund trustees to the dependents at the trustee’s discretion under a ‘letter of wishes’ (which is not legally binding but the Pension Fund Trustees normally abide by D’s wishes)
Trust Property	This will pass according to the terms of the trust, not the will; However, an interest in remainder under a trust can pass according to a will, or under intestacy
T&F NOTE	If the Deceased’s Insurance Policy, Pension Benefits and Trust Property are payable to the deceased’s Estate, then the deceased PRs are able to dispose of the proceeds of the Policy, the Pension and the Trust by will.

Requirements for a Valid Will (p.345)

General

Page 345

In order to create a valid will a testator must have:

Capacity
Intention and,
Must observe the formalities (s.9 Wills Act Below) for execution of wills under the Wills Act 1837

Once the will is made it may be revoked by:

subsequent marriage or
The formation of a civil partnership,
By destruction or,
By a later will

Capacity

Page 345

Testator is 18 or over;
Requisite mental capacity of “soundness of mind, memory and understanding” as per Banks v Goodfellow 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 rejects them)
Mental Capacity Act 2005 doesn’t apply to wills (Testator must not suffer from insane delusion);
There is a presumption, at common law, that capacity existed when testator made his will;
Burden of proof rests with those alleging lack of capacity.

Intention

Page 346

Must have general (to make will) and specific (contents of will) intention as to the will;
There is a general presumption that testator has intention. Presumption won’t apply if testator is:
- Illiterate, blind or not signing in person (here, some sort of signed statement/other evidence is required to prove knowledge & approval)
- Suspicious circumstances (e.g. prepared by beneficiary). Note O(2.4): where client gives to sol/sol’s partner or member of firm/families, the gift is significant and sol should advise client to take independent advice and refuse to act if they don’t seek it.
Burden of proof is on those alleging lack of intention & must prove that will was made under:

o Force, fear (actual/threatened), fraud or undue influence or,

o If Mistake – “actual mistake” - only absence of knowledge and approval will invalidate Will, not misunderstanding of true legal meaning of words. Page 347

Formalities

(Under

s.9 Wills Act 1837)

Page 347

Under s.9 Wills Act 1837: the will must be:
1. signed writing by testator or by other person in his presence & under his direction;
2. testator signed to give effect to the will i.e. had intention (even if wrong will)
3. at least 2 witnesses are present when testator signs. The Witnesses must :

(i) understand the significance/extent and of the will and,

(ii) Under s.15 Wills Act 1837 if a beneficiary or their spouse/CivPart witnesses the will, the will remains valid but the gift to that beneficiary will fail.

Witnesses need not be there at the same time to sing themselves but testator must.

A will made on military serv. or by a seaman at sea is valid even if it is only oral (Ayling v Summers)
If attestation clause is included, presumption of due execution.
If attestation clause not included, an affidavit of witness or affidavit of handwriting evidence will be required.

T&F NOTE If an executor is a witness to a will it does not make the will invalid and it does not prevent the executor acting.A gift can be validly made to an executor in a will and the gift does not prevent the executor from acting.

Revocation

(Testator can revoke will at any time. 3 ways of revoking a will :)

Page 349

Under Wills Act (WA) 1837 s.20 by a later valid will or codicil (both impliedly or expressly)
WA s.18: By testator marring or forming a civil partnership the will is automatically revoked

WA s.18(3) unless will was made when testator was expecting to marry and did not intend it to fail
WA s.18A: post-divorce will is still valid, but if spouse was executor, spouse is treated to have died on divorce date so gift to spouse or civil partner fails.

Full physical destruction with intention to revoke & in the presence of Testator (WA s.20) (not accidental/unwilling destruction)

Alteration

(AKA Codicil)

Page 350

Basic rule = Alterations are invalid, unless :

proved that they were made before Will was executed or,
The alteration was executed like the original will (i.e. initials of testator and 2 witnesses are put in margin)

If the alteration is invalid the original wording stands
An Alteration (Codicil) republishes the will as if it was made on that date (this is important for identifying specific property, such as “my car”)

Failure of Gifts

(Legal Foundations p. 351-355)

Ademption (occurs because the property has been sold, given away or destroy during the Testator’s lifetime) Page 351	A gift will fail if the property isn’t owned by Testator at death or if there is a change in the substance of the gift. Gift changed in substance (e.g. shares in X, but company has been taken over by Y) gift stands Property has been replaced (e.g. my watch/my car, but it’s a different watch/car from the one with which he made the will) gift fails (is adeemed). But check circumstances carefully gift may still be successful if e.g. the respective values of the original and substituted assets is the same. Property can increase/decrease (e.g. all my jewellery) gift will include all items matching that description even if stolen and rebought. But would fail if “my diamond ring” is stolen and rebought.
Lapse = (Beneficiary Predeceases Testator.) Page 352	Gift lapses if beneficiary predeceases testator (“T”). If gift lapses, property will fall into residuary estate. If gift of residue lapses, it passes under intestacy rules (unless T’s made substitutional gift). If beneficiary dies soon after T, property passes to beneficiary’s estate, Unless there is a condition to contrary, gift vests on B at T’s death thus B must just survive T! Under Law on Succession Two People cannot die at same time!, therefore If order of death can’t be proved, elder of the two is deemed to have died first (s.184 LPA ‘25) Gifts to more than one person wont lapse unless all donees die before testator. A Class gift (e.g. to all my kids in equal shares) won’t lapse until they all predecease the testator. Under s.33 WA: T gifts to his children, T’s children die, the gift won’t lapse if T’s children had children (T’s grandsons/remote issue) thus gift will pass to them i.e. the issue of the beneficiary.
s.33 Wills Act 1837	Terry is murdered by his daughter, Denise. His will leaves everything to Denise who has a son, Sean. Denise forfeits her entitlement under the will but she will be treated as if she had predeceased Terry, with the result that s 33 WA 1837 will apply and Terry’s property will pass to Sean.
s.15 Wills Act 1837	Under the WA 1837 s 15, a gift by Will fails if the beneficiary, his spouse or civil partner witnesses the will
s.18A Wills Act 1837	post-divorce, couple’s will remains valid but clauses where ex is appointed executor or given property are treated as if ex died on divorce date (therefore gift to divorced/annulled other fails!)
Divorce Page 354	After divorce, the will is still valid, but if spouse or civil partner (CP) was the beneficiary the divorce/dissolution/voidance of the marriage/CP, makes the gift to that person fail.
Disclaimer	If the beneficiary refuses the gift, it will fall into residue. They cannot disclaim the gift if they have already had some benefit from it (such as the income). T&F NOTE A solicitor should refuse to act where a client...

#10284 - Wills - Private Client

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