1
Q
Wording in a Will should be
A
clear, concise and unambiguous
2
Q
When should a Will be dated?
A
when it is executed
3
Q
Typical punctuation rules when drafting a Will
A
Wills are traditionally drafted without punctuation
Common to capitalise words which explain the purpose of the clause
4
Q
Introductory clauses
A
- Commencement
- Revocation
- Burial/Funeral wishes
- Appointment of executors and trustees
- Appointment of guardians
5
Q
Clauses disposing of property
A
- Specific gifts
- General gifts
- Pecuniary gifts
- Residuary gift
6
Q
Final clauses of a Will
A
Administrative Clauses
Date & Attestation
7
Q
Where in the Will can the date be included?
A
The date can be included in the commencement or at the end of the will
8
Q
Purpose of the commencement clause
A
to identify the testator (and their occupation)
9
Q
Where in the Will can a revocation clause be included?
A
as part of the commencement or a separate clause
10
Q
Why is it best practice to include a revocation clause?
A
Ensures that all previous wills/codicils are revoked so only one valid document exists at any one time
11
Q
Is the clause on burial and funeral wishes legally binding?
A
No, it is not legally binding on the PRs but normally followed where possible
12
Q
How to draft a clause appointing legal guardians
A
I APPOINT [ ] and [ ] jointly to be the guardians of any of my children who have not attained the age of 18 at the death of the survivor of myself and my civil partner [ ]
13
Q
What should professional trustees include as part of the appointment clause?
A
an express charging power, in case s.29 Trustee Act cannot be relied upon
14
Q
Where do express administrative provisions usually appear in the Will?
A
after the dispositive clauses
15
Q
Trust deed for a testamentary trust
A
the Will itself
16
Q
Format for date and attestation clause
A
Date: []
Signed by [ ] in our joint presence and then by us in [his OR her] presence
17
Q
Purpose of the attestation clause
A
describes the circumstances in which the will was signed
18
Q
Dispositive clauses
A
clauses within a will that dispose of the testator’s property
19
Q
“Legacy”
A
a gift of chattels or personalty
20
Q
“Devise”
A
gifts of real property (land)
21
Q
Traditional order of dispositive clauses
A
Non-monetary gifts
Gifts of cash
Gift of “everything else” - the residue
22
Q
Where division of a collection of items is required, the will should specify…
A
how agreement should be reached, a time frame for deciding on a division and state how any failure to agree within such time should be resolved (eg each of my 4 children is entitled to 1 of my 4 Picasso paintings of their choosing)
23
Q
Pets qualify as
A
chattels
24
Q
Why do specific gifts of items/collections appear before the gift of chattels in a will?
A
to prevent overlap
25
How should a specific gift of land be referred to in the Will?
full address and registered title number should be used
26
What should the solicitor check before including a gift of land in the Will?
A solicitor should check if any third party interests apply and if the testator holds the property on trust for anyone else
27
A general legacy
a gift of property which is not distinguished from property by a similar type e.g. “a” rather than “my” e.g. “a Canon Camera”
28
How are pecuniary gifts usually stated in the Will for clarity?
Usually stated in numbers and words for clarity
29
A demonstrative legacy
a type of general legacy which the will directs should be paid out of a specified fund.
30
When is it advisable to impose a trust over the residuary estate?
a trust should generally be imposed where the residue is given to more than 1 person and/or there are contingent or minor interests
31
Ways to avoid failure of a residuary gift resulting in partial intestacy
- create express substitution clauses and/or
- use an ultimate gift over clause (“disaster clause”) where the testator specifies who their estate should pass to if all other gifts fail (eg a charity)
32
It is common to capitalise the words which explain the purpose of the clause: e.g.
I GIVE, I APPOINT
33
When identifying the people who should inherit under a clause, the will is deemed to speak from the date of
execution, unless the wording in the will shows a contrary intention
34
the “class closing” rules
the class closes when the first beneficiary in the class obtains a vested interest
35
Why should express wording be included to determine the class of beneficiaries? (eg all grandchildren existing at my time of death)
Without express wording, the “class closing” rules apply and the class closes when the first beneficiary in the class obtains a vested interest (eg when the first grandchild turns 18).
36
Relieving provisions
describe who should bear the burden of taxes, charges, expenses and costs
37
General rule on IHT on specific gifts if an express provision is not included
an individual gift in a will is made free of IHT, and IHT would be payable out of the residue as a general testamentary expense
38
To ensure that the cost of transfer and expenses accrued since the date of death are paid out of the residuary estate, the gift should be stated to be...
“free of” expenses and/or costs of transfer
39
General rule on property subject to a charge eg mortgage
unless the will shows a contrary intention, the asset charged bears liability for payment and the beneficiary inherits the property subject to the charge
40
Is an attestation clause required?
No, an attestation clause is NOT legally required
41
An attestation clause
describes the circumstances under which the will was executed
42
Why is it best practice to include an attestation clause?
Because a properly drafted attestation clause raises a presumption that the will was executed according to the requirements of s 9 WA 1837 (however, doesn't give rise to presumption of testator's intent)
43
Best practice for an attestation clause
A properly drafted attestation clause raises a presumption that the will was executed in accordance with the requirements of s 9 WA (a presumption of due execution). Therefore it should refer to the testator acknowledging their signature in the presence of the witnesses, and the witnesses both signing in the presence of the testator (although they do not need to sign in front of each other).
44
How can the issue of commorientes rule / simultaneous or deaths in close succession be resolved in the drafting of the Will?
To avoid the problem of very closely timed deaths, an express survivorship clause can be included in the will
45
Considerations when drafting gifts to issue
- Does the testator want to make a gift to an individual or make a class gift?
- Is the gift to be vested or contingent?
- What does the testator want to happen if a beneficiary predeceases?
46
Application of s 33 WA
S. 33 applies to gifts to issue of the testator. Where the issue predecease their testator parent and they died with issue, their issue will inherit equally (unless an alternative provision is stated in the Will).
47
Does s 33 WA 1837 always apply?
Yes, S 33 will always apply unless excluded by the will or if the will indicates a contrary intention
48
What should be included in clauses appointing LLPS or trust corporations, or giving gifts to charities?
- CoHo or Charity Commission number and reg. address
- Express provision should be made for the organisation(s) subsequently changing their name, amalgamating with another organisation(s) or ceasing to exist.
49
What express provision should be included in respect of charities being able to claim their gifts under the Will?
The Will should expressly state who can give valid receipt - this is usually the charity's treasurer. Otherwise, all members or potential beneficiaries would need to give receipt which is not practical
Example: The receipt of the treasurer or other appropriate officer for the time being of the charity (or of any substituted charity) shall be a good discharge to my Trustees
50
A charitable gift stated to be for general charitable purposes results in the application of the cy-près doctrine
under s 62 Charities Act 2011, the gift can be given to a different charity with a similar purpose where the original gift cannot be given effect
51
Is dating a will a legal obligation?
No but it is good practice
52
Will attestation clause: blind testator
Signed by [TESTATOR]
[by his or her mark] as a testamentary document in the presence of both of us
and then by us in [his or her] presence, after this document had been read over by
[NAME OF PERSON WHO READ DOCUMENT TO TESTATOR]
to the testator (who is blind) when the testator seemed thoroughly to
understand and approve the contents.
53
Will attestation clause: testator physically unable to sign
Signed by [NAME OF PERSON SIGNING ON BEHALF OF TESTATOR] [in [his or her] own name or with the name of the testator] on behalf of [NAME OF TESTATOR] in the presence of both of us, then by us in [his or her] presence and at [his or her] direction, after this document had been read over by [NAME OF PERSON WHO READ DOCUMENT TO TESTATOR] to the testator (who is physically incapable of signing), when the testator seemed thoroughly to understand and approve the contents.
54
Will attestation clause: illiterate testator
Signed by [NAME OF TESTATOR] [by [his or her] mark] in the presence of both of us, then by us in [his or her] presence after this document had been read over by [NAME OF PERSON WHO READ DOCUMENT TO TESTATOR] to the testator when the testator seemed thoroughly to understand and approve the contents.
55
Will attestation clause: testator does not understand English
Signed by [NAME OF TESTATOR] (who understands [FIRST LANGUAGE OF TESTATOR] but cannot read English) in the presence of both of us and then by us in [his or her] presence after this document had been read over in English and accurately interpreted to the testator by [NAME OF PERSON WHO READ DOCUMENT TO TESTATOR] who understands both English and [FIRST LANGUAGE OF TESTATOR] in our presence when the testator seemed thoroughly to understand and approve the contents.
56
General will attestation clause
Signed by [TESTATOR'S FULL NAME] in the presence of both of us and then by us in [his or her] presence
57
What clause could be included to protect the PRs?
exemption clause eg “None of my Executors (other than a professional executor) shall be liable for any act or omission save for an act or omission involving willful fraud or dishonesty and I further declare the duty of care contained in section 1 of the Trustee Act 2000 shall not apply to any of my Executors”
58
What 2 basic presumptions will the court apply when considering the language of the will?
(1) Non-technical words bear their ordinary meaning
(2) Technical words are given their technical meaning
59
When would the presumptions re language in the will be rebutted?
if from the will (and any admissible extrinsic evidence) it is clear that the testator was using the word in a different sense.
60
Court's approach to determining the testator's intention
determine the intention of the testator as expressed in the will when read as a whole
61
Where the will is silent, legatees take their legacies
free of IHT
62
a solicitor's duty of care when drafting a will
prepare a will for a client with due skill and care, and within a reasonable time
63
Powers to include in all wills
- Power to charge
- Power to appropriate assets to meet debts and expenses without consent of legatee
- Power to insure assets
- Power to accept receipts from or on behalf of minors
- Power to allow self-dealing
64
Powers to include for trustees
Powers to:
- invest
- appropriate assets
- purchase land
- sell personalty
- use income for maintenance of beneficiaries
- use capital for advancement of beneficiaries
65
Details to include with the witness' signature
Date
Address
Occupation
66
Residuary estate clause
Subject to the payment of all my debts funeral and testamentary expenses I give all my estate not otherwise disposed of (‘my Residuary Estate’) to such of my nieces and nephews who are living at the date of my death and if more than one in equal shares.
67
Instructions to a client if you enclose a will/codicil via email
- all sign in INK
- two independent witnesses (not beneficiaries), adults of sound mind, who must sign in your presence;
- witnesses must add their signatures, full names (in capital letters), main residential addresses and their occupations where indicated;
- explain consequences if not executed properly;
- don’t attach any documents to the will/codicil
- If they want further changes, return and do not execute
68
Drafting an affidavit of due execution
IN THE ESTATE OF X
I, Y, make oath and say as follows:
(1) explain that you are a subscribing witness and name the other witness, state when the will is dated and exhibit the will "produced to me and marked OD1"
(2) confirm due execution
Sworn by the above-named deponent AT [Solicitors or Commissioners for Oaths]
this day of MONTH of YEAR
BEFORE ME: [Signature of Solicitor or Commissioner for Oaths]
Wills
flashcards
Decks in class (16)
# Cards
-
Succession Estate and Intestacy49
-
Drafting a Will68
-
Wills: Capacity and Validity146
-
Revocation, Additions and Alterations70
-
Wills (Tax Planning)66
-
IHT (death estate)116
-
IHT (lifetime)28
-
Administration pre-grant115
-
Administration (post-grant)109
-
IPFDA 1975 Claims69
-
Rights of Beneficiaries / Liabilities of PRs38
-
Wills - Professional Conduct4
-
CGT19
-
Legal Drafting - Wills and Estates7
-
IHT exemptions13
-
IHT reliefs25
