Is intention to create a will presumed?
Yes, unless the testator was blind or illiterate, or there are suspicious circumstances.
When is a will made under duress?
If created as a consequence of the testator being injured or threatened with injury.
When is a will made under undue influence?
If the testator’s volition or freedom was overpowered, i.e. coercion rather than persuasion. It must be proven the testator surrendered to intolerable pressure.
More likely to find undue influence if the testator was mentally or physically weak.
What are the formal requirements for a valid will?
- In writing.
- Signed by the testator in the presence of two witnesses.
- Signed by the two witnesses in the presence of the testator.
When can a person renounce their rights to a grant of probate?
When they have not taken a grant of probate or intermeddled with the estate. This does not affect their position as trustee, but is an all or nothing position.
How does a person renounce their rights to a grant of probate?
- Must be in writing.
- Must be signed by the executor and a witness.
- Must contain a statement they have not intermeddled.
- Filed at HMCTS Probate Service.
What does it mean to have power reserved?
The executor can later APPLY for a grant of probate.
When is an alteration to a will valid?
If it can be proved it was made before execution. An unattested alteration is presumed to have been made after execution unless filling in a blank space.
What are the requirements of a codicil?
- It must follow the same formalities as a will.
- It must make reference to the will.
What are the 2 ways a will is automatically revoked?
- Marriage, unless it was clear the testator was going to marry a particular person and they intended the will not be revoked by marriage.
- Divorce/dissolution does not revoke the will, but treats the spouse as having died on the date of divorce unless a contrary intention is stated.
What are the 2 ways a will is revoked as a deliberate act by the testator?
- Executing a later will or codicil, to the extent it is inconsistent of the terms of the earlier document.
- Destruction by the testator or someone in his presence, with intention of revocation.
What is the presumption if a will is found mutilated on the testator’s death or cannot be found?
That the testator intended to revoke it - this presumption is rebuttable.
What does it mean if a gift adeems?
A specific gift fails if it is no longer part of the testator’s estate, is subject to a binding contract for sale, or no longer meets the will’s description.
What does it mean if a gift lapses?
If a beneficiary predeceases the testator, the gift will lapse if there is no substitutional gift - otherwise, it falls into the residue.
What are the class closing rules?
A class closes when at least one beneficiary has a vested interest.
What property passes outside the estate?
- Joint property.
- Life assurance policies.
- Pension scheme death benefits.
- Nominated property up to £5,000.
- Life interests in trust property.
What is the spouse’s entitlement if the deceased dies intestate with issue?
- All chattels.
- £322,000.
- Half of the residue.
What is the order of entitlement if there is no surviving spouse?
- Issue on statutory trusts.
- Parents (equally if both alive).
- Brothers and sisters on statutory trusts.
- Brothers and sisters of the half blood on statutory trusts.
- Grandparents (equally if more than one).
- Uncles and aunts on statutory trusts.
- Uncles and aunts of the half blood on statutory trusts.
- The Crown.
Who deals with non-contentious and contentious probate?
- Non-contentious: HMCTS.
- Contentious below £30,000: County Court.
- Contentious above £30,000: Chancery Division of the High Court.
How many executors can there be?
1-4
What is letters of administration with will annexed?
Obtained when there is a problem concerning appointment of executors.
- Min. 2 administrators required if there is a minor beneficiary or life interest under the will.
- Right to renunciation not lost by intermeddling.
- The person applying must clear off those who have a better right.
What is the order of entitlement for letters of administration with will annexed?
- Trustee of the residuary estate.
- Any other residuary beneficiary, preferring vested interests.
- PRs of any residuary beneficiary, but not life tenants.
- Any other beneficiary or creditor.
- PRs of any other beneficiary or creditor, but not life tenants.
What is letters of administration?
Obtained when the deceased dies intestate or all gifts fail.
- 2 administrators required if there is a minor beneficiary or life interest.
- Maximum of 4 administrators and power cannot be reserved.
- Clearing off rules apply.
What is the order of entitlement for letters of administration?
- Surviving spouse or civil partner.
- Issue and any predeceased child.
- Parents.
- Brothers and sisters and issue if deceased.
- Half brothers and sisters and issue if deceased.
- Grandparents.
- Uncles and aunts and issue if deceased.
- Half uncles and aunts and issue if deceased.
- The Crown.
- Creditors.
1-8 must have a beneficial interest in the estate, and the PRs also have the same right as the person they represent (issue have priority over PRs of a surviving spouse who has died before obtaining a grant, unless beneficially entitled to the whole estate).
