Acing the SQE/Wills
Wills and Intestacy edit
Validity of wills and codicils edit
Wills Act 1837, s 9
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 by his signature intended to give effect 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.
testamentary capacity edit
It refers to the legal requirement that a person must meet certain criteria in order to make a valid will.
- Understand the nature of making a will: This means that the person must understand that they are making a legally binding document that will determine the distribution of their property after their death.
- Know the extent of their property: The person must have a general understanding of the type and value of their property.
- Understand who the natural objects of their bounty are: This means that the person must be aware of those who might reasonably expect to benefit from their estate, such as their spouse, children, or other close relatives.
- Not be under any undue influence: The person must not be under any pressure or coercion from others to make a will in a particular way.
duress and undue influence edit
- Duress: A will has been made as a result of force or fear
- Undue influence: something that overpowers the volition of testator
formal requirements edit
Personal Representatives edit
the appointment of executors edit
renunciation and reservation of power edit
Alterations and amendments to wills edit
effect of alterations made to wills both before and after execution edit
The alteration is valid if it was made before execution.
use of codicils edit
Revocation of wills edit
methods of revocation edit
effect of marriage and divorce of a testator edit
The interpretation of wills edit
effect of different types of gift edit
failure of gifts edit
The intestacy rules edit
Section 46 of The Administration of Estates Act 1925 edit
If there is a surviving spouse but no issue, the spouse is entitled to the entire estate.
If there is a surviving spouse and issue, the spouse takes: personal chattels, 270,000 and one of the residue absolutely.
If there is no surviving spouse:
- Issue of the intestate on statutory trusts;
- Parents (equally if both alive)
- Brothers and sisters of the whole blood on statutory trusts;
- Brothers and sisters of the half blood on statutory trusts;
- Grandparents
- Uncles and aunts of the whole blood on statutory trusts;
- Uncles and aunts of the half blood on statutory trusts; and
- The Crown as 'bona vacantia'.
the statutory trusts edit
Property passing outside the estate edit
joint property edit
life policies edit
pension scheme benefits edit
trust property edit
Probate and Administration Practice edit
Grants of representation: edit
need for grant edit
the relevant provisions of the Non-Contentious Probate Rules edit
application procedure edit
valuation of assets and liabilities edit
excepted estates edit
methods of funding the initial payment of Inheritance Tax edit
burden and incidence of Inheritance Tax. edit
Administration of estates: edit
duties of personal representatives edit
liabilities of personal representatives and their protection edit
the sale of assets to raise funds to pay funeral expenses, tax, debts and legacies edit
distribution of the estate. edit
Claims against estates under the Inheritance (Provision for Family and Dependants) Act 1975 edit
Under English law, the Inheritance (Provision for Family and Dependants) Act 1975 (the "Act") allows certain individuals to make a claim against an estate if they believe that they have not been adequately provided for in the deceased's will or under the rules of intestacy.
Time limit edit
The time limit for making a claim against an estate under the Act is 6 months from the grant of probate or letters of administration. However, in some circumstances, the court may allow a claim to proceed outside of the 6-month time limit.
Applicants edit
The Act provides for a limited group of applicants who may make a claim against an estate, including:
- Spouses or civil partners of the deceased
- Former spouses or civil partners who have not remarried or entered into a new civil partnership
- Children of the deceased, including adult children and children who were treated as the deceased's children (such as stepchildren)
- Individuals who were maintained by the deceased prior to their death, such as a cohabiting partner or dependent relative
- Any person who was being supported by the deceased (wholly or partly) immediately before the deceased's death
Grounds edit
In order to make a successful claim under the Act, the applicant must demonstrate that the deceased did not make "reasonable financial provision" for them in their will or under the rules of intestacy. What constitutes "reasonable financial provision" will depend on the specific circumstances of each case, but the court will consider factors such as the financial needs and resources of the applicant, the size and nature of the estate, and the needs of any other beneficiaries. It is worth noting that the Act does not give an absolute right to make a claim against an estate. The court has discretion to decide whether to grant an application and how much provision should be made.