Wills: drafting

Question 1

What is the general style and structure of professionally drafted wills?

Answer 1

They follow precedents, with wording that is clear, concise, and unambiguous. Colloquial/technical language is avoided unless necessary.

Wills are often drafted without punctuation, with key words capitalised (e.g. “I GIVE”), and clauses numbered for clarity.

Precedents are a starting point but must be amended to fit the client’s needs.

Question 2

What is the standard structure of a will?

Answer 2

1. Introductory clauses;
2. Appointment of executors/guardians;
3. Dispositive clauses (gifts, residuary gift);
4. Administrative provisions;
5. Execution/attestation.

Question 3

What is the purpose of the commencement clause in a will?

Answer 3

To identify the testator by full name and address (sometimes occupation too). If the testator is known by another name, this should be included to avoid delays in administration. The date may be included here or at the end.

Question 4

What is the purpose of the revocation clause?

Answer 4

To revoke all previous wills/codicils so only one valid will exists at a time. While not legally required, it avoids uncertainty. A later inconsistent will revokes earlier ones impliedly. Wills can also be revoked by codicil, marriage, divorce, destruction, or effective manuscript amendments.

Question 5

Are burial and funeral wishes in a will legally binding?

Answer 5

No, they are not legally binding on personal representatives, but will usually be followed where possible. They are normally placed at the start of the will before operative provisions.

Question 6

What is the role of executors and how are they appointed?

Answer 6

Executors (personal representatives appointed by will) administer the estate under s.25 Administration of Estates Act 1925. They pay debts/expenses and distribute assets. Appointment is by will; if not, administrators are appointed under the NCPR. Executors derive authority from the will.

Question 7

Who can act as executor and how many should be appointed?

Answer 7

Any adult with capacity (not minors, nor those lacking capacity). Bankrupt individuals can act but may be limited.

Minimum 1, maximum 4 may take out a grant. Best practice is to appoint at least 2 to ensure continuity.

Question 8

What is the difference between an executor and an administrator?

Answer 8

Executor: A person appointed by the testator in a valid will to act as personal representative. They administer the estate according to the will, paying debts and distributing assets.

Administrator: A person appointed by the court (under the Non-Contentious Probate Rules) when the deceased died intestate (without a valid will) or when no executor is willing or able to act. They have the same general duties as an executor but follow the rules of intestacy rather than a will (except when appointed by court when there is a will - then ‘administrator with will annexed’.)

Question 9

What happens if a spouse/civil partner appointed as executor later divorces/dissolves partnership with the testator?

Answer 9

The appointment is revoked by s.18A/C WA 1837 unless otherwise stated.

Question 10

Can an executor’s appointment be qualified?

Answer 10

Yes, by time (e.g. survive testator by 30 days), asset type (e.g. business assets only), or location (e.g. UK assets only). Drafters must ensure all assets are covered to avoid gaps in administration.

Question 11

Why is it common to appoint executors as trustees too?

Answer 11

Because trusts often arise after death (e.g. minor beneficiaries). At least two trustees should act if a trust arises, or a trust corporation.

Same people are often appointed to act in both roles for simplicity.

Question 12

How can law firms or LLPs be appointed as executors?

Answer 12

Partnerships themselves cannot (no separate legal identity). Instead, all partners at the date of death are appointed, with numbers limited in the clause.

LLPs and trust corporations can be appointed directly as they have separate legal personality.

Question 13

Can professional executors charge for their work?

Answer 13

Yes, under Trustee Act 2000, but they usually include an express charging clause for clarity. This allows remuneration without breaching fiduciary duty or self-dealing rules.

Question 14

How are guardians appointed by will?

Answer 14

testator with parental responsibility may appoint guardians for children under 18 (s.5 Children Act 1989). Appointment usually takes effect on death of the surviving parent. Guardianship is voluntary, so consent should be obtained, and financial provision may be considered.

Question 15

What are administrative clauses in wills and why are they important?

Answer 15

They give executors/trustees powers to manage estate/trust assets. Without them, only statutory/common law powers apply. Express provisions can expand, restrict, or restate powers. STEP Standard Provisions are often incorporated to avoid lengthy lists.

Question 16

What is a trustee in the context of a will?

Answer 16

A trustee is a person or entity appointed to hold and manage assets on trust for beneficiaries, either under an express trust created by the will or where a trust arises automatically (e.g., a minor beneficiary or contingent interest).

Question 17

What are dispositive clauses in a will?

Answer 17

Clauses where the testator directs who inherits their assets, what each person receives, and on what terms. They can be direct gifts or subject to trusts.

Question 18

What is the traditional distinction between a ‘legacy’ and a ‘devise’?

Answer 18

Legacy: gift of personalty/chattels

Devise: gift of real property/land

Question 19

How are gifts typically ordered in a will?

Answer 19

Specific/non-monetary gifts first, followed by cash gifts, then the residuary estate (‘everything else’).

Question 20

What is a specific gift?

Answer 20

A gift of a particular item owned by the deceased at death. It must be clearly identifiable to avoid uncertainty.

Question 21

What happens if a testator no longer owns the specific item at death?

Answer 21

The gift adeems, meaning the beneficiary receives nothing unless a substitution clause is included.

Eg drafting: Include an alternative item or cash equivalent, e.g., “I give my Stradivarius violin or such other violin I own at my death.”

Question 22

What is a gift of a collection of items?

Answer 22

A type of specific gift including multiple items. Must be clearly identified and instructions should cover division among multiple beneficiaries.

Question 23

What are chattels under s.55(1)(x) Administration of Estates Act 1925?

Answer 23

All tangible movable property except: money/securities, items used mainly for business, or solely held as investment. Includes vehicles and pets.

Question 24

How should a gift of chattels be drafted if the testator has also made specific gifts?

Answer 24

Include only items not already disposed of in earlier specific gifts to avoid conflicts. (so make clear in clause disposing of chattel that this excludes anything already disposed of.)

Question 25

What are general legacies?

Answer 25

Gifts of property not distinguished from other property of the same type (e.g., “a Hasselblad camera”). Usually does not fail if the asset is not in the estate at death (because PR can buy it.)

Question 26

What is a demonstrative legacy?

Answer 26

A type of general legacy directed to come from a specific fund. If insufficient, the balance is paid as a general legacy. (Not usual in practice.)

Question 27

What is a pecuniary legacy?

Answer 27

A gift of money, either specific (from a particular source) or general. Usually stated in both numbers and words.

Question 28

What is a residuary gift?

Answer 28

A gift of all remaining estate assets not disposed of by earlier clauses. Often the largest and most complex part of a will. Good to include to avoid partial intestacy and ensure all assets, debts, and funeral/administration expenses are accounted for.

Question 29

What is a substitution or ultimate gift over clause?

Answer 29

A provision specifying who receives the gift if the primary beneficiary or gift fails, e.g., if all other gifts fail, the estate goes to a charity.

Question 30

What happens if a specific, general, or pecuniary gift fails without substitution?

Answer 30

The gift falls under the chattels clause (if relevant) or passes under the residuary estate clause.

Question 31

What happens if the residuary clause fails?

Answer 31

Full or partial intestacy occurs, potentially complicating administration and deviating from the testator’s intentions. So have to be careful !! Bad to give specific percentages to specific people, because if one of them dies, partial intestacy (like 1/3 to A, B and C...) Better to say if more than one, in equal shares.

Question 32

When is a specific gift of land clause required in a will?

Answer 32

Only if the testator wants to give a particular property to a beneficiary, rather than letting it pass automatically (e.g., via joint tenancy or to the residuary estate).

Question 33

What happens to land owned as joint tenants on death?

Answer 33

It passes automatically to the surviving co-owner under the law of survivorship; no provision in the will is needed unless the testator wants a different outcome.

Question 34

What must be included in a specific gift of land to a beneficiary?

Answer 34

The property must be clearly identifiable, ideally with: - Full postal address - Registered title number

Question 35

What should a solicitor check before drafting a gift of land?

Answer 35

Whether the property is owned solely or jointly Whether any third-party interests or trusts affect the property Rights of co-owners if tenants in common

Question 36

What practical issues should be considered when leaving land in a will?

Answer 36

Tax implications (e.g., Residence Nil Rate Band) Outstanding mortgage or secured loans If left on trust: rights of occupation, rent, veto powers, upkeep costs Clear terms for joint ownership if multiple beneficiaries

Question 37

What is the solicitor’s role in relation to rules of construction of a will?

Answer 37

To draft a will that complies with the client’s instructions; if a clause is unclear, the courts will interpret it based on rules of construction, so express words clarifying the testator’s intention should be used.

Question 38

What does “the will speaks from the date of death” mean?

Answer 38

Under s.24 Wills Act 1837, gifts in a will are generally identified based on the property or estate at the date of the testator’s death, unless the will shows a contrary intention.

Question 39

What wording can show contrary intention to 'will speaks from date of death' rule?

Answer 39

Words like “my,” “now,” or “at present” indicate that the gift refers to property owned at the date of execution rather than at death. Eg: * “I GIVE to [ ] my car absolutely” → refers to the car the testator owned when the will was made. If the testator sells the car before death, the gift **adeems** (fails) unless a substitutional gift is included, e.g., “I GIVE to [ ] my car, or if I no longer own it at my death, the cash equivalent.”

Question 40

How are gifts of collections treated in terms of date?

Answer 40

A gift of a collection (e.g., stamp collection, **shares**) is taken to include all items in the collection at the date of death, unless the will specifies otherwise. (even if 'my' used - includes all the stuff that has grown within collection after date of execution of will.)

Question 41

How/when are people identified under a will?

Answer 41

Beneficiaries are identified with reference to the **date of execution**, unless the wording shows a contrary intention.

Question 42

How are class gifts treated in a will and how is the date of identification determined?

Answer 42

A class gift is a gift to a group of people defined by a description rather than by name, e.g., “my grandchildren” or “my employees.” General rule: People are identified with reference to the date of execution of the will, unless the will shows a contrary intention. The class closing rule applies: the class closes when the first beneficiary in the class obtains a vested interest. (Although codicils can 'republish' will so people are identified with reference to the codicil date.) Example: * Gift to “my grandchildren” → only those alive at the date of execution (or another specified date in the will) are included. * Later-born grandchildren would not share unless the will expressly includes them, e.g., “all grandchildren who survive me.”

Question 43

What is a relieving provision in a will?

Answer 43

A clause specifying who bears the burden of taxes, charges, and expenses; if absent, general rules apply.

Question 44

Who bears inheritance tax if the will is silent?

Answer 44

The residuary estate bears the IHT; individual gifts are presumed free of tax. Express wording can change this.

Question 45

Who bears costs of delivering and preserving a specific gift if the will is silent?

Answer 45

The beneficiary bears the costs unless the gift is expressly stated to be free of expenses or transfer costs.

Question 46

How are property charges (e.g., mortgages) handled if the will is silent?

Answer 46

Under Administration of Estates Act 1925, the property subject to the charge bears the liability unless the will expressly relieves it.

Question 47

Rule on extrinsic evidence to help constructing wills?

Answer 47

Under Administration of Justice Act 1982, courts can use extrinsic evidence to interpret unclear or ambiguous will clauses; although they cannot contradict the will, only clarify meaning.

Question 48

What is the general rule for survivorship under a will?

Answer 48

Beneficiaries must survive the testator; if they predecease, the gift lapses (WA 1837). No default 28-day rule applies like under intestacy.

Question 49

What is a survivorship clause?

Answer 49

A clause specifying that a beneficiary must survive the testator by a certain period (commonly 28 or 30 days) to inherit, helping avoid administration complications or double IHT.

Question 50

How are two deaths in close succession treated?

Answer 50

Uncertain order of death: commorientes rule (s.184 LPA 1925) – elder presumed to die first. IHT (s.4 IHTA 1984): deaths treated as simultaneous; each estate taxed separately, but assets passing from first to second are not double taxed. Quick Succession Relief may apply if order is known. Solution: include a survivorship clause (e.g., 28 days) to avoid delays, extra costs, and IHT complications.

Question 51

Key summary rules of construction:

Answer 51

i) Will speaks from death unless contrary intention ii) Collections are identified at death iii) People are identified at execution iv) Gifts are free of IHT unless stated otherwise v) Specific gifts are subject to transfer expenses vi) Property with charges bears liability unless relieved vii) No automatic survivorship period; use express clauses

Question 52

Who normally bears inheritance tax and costs on a specific gift?

Answer 52

General rule: Specific gifts are free of IHT; the residuary estate bears the tax. (unless express stated.) Costs/charges: Specific gifts normally bear expenses of transfer (delivery, upkeep). Exception: If property is subject to a mortgage or charge (s.35 AEA), the gift inherits the liability unless the will says otherwise.

Question 53

How do mortgage protection policies affect gifts of mortgaged property under a will?

Answer 53

Definition: Insurance that pays off a mortgage if the policyholder dies (or sometimes on illness/unemployment). - Check if policy proceeds are meant to pay off the mortgage, so the beneficiary gets the property free of the charge. - If proceeds are part of the estate, the beneficiary takes property subject to the mortgage debt. - Policy proceeds may bypass the estate, e.g., paid directly to the lender or surviving joint owner.

Question 54

Who counts as “issue” under a will?

Answer 54

Includes children, grandchildren, further lineal descendants; illegitimate, legitimated, adopted, and children en ventre sa mère. Step-children only if will clearly intends.

Question 55

Individual vs class gifts to issue

Answer 55

Individual: specific named beneficiaries. Class: group defined by relationship (e.g., “my children”). Express wording recommended to clarify which individuals are included

Question 56

Class gifts – when do class closing rules apply?

Answer 56

If a gift is given to a “class” of beneficiaries, unless express words clarify when members of the class are identified, ‘class closing’ rules apply and the class closes when the first beneficiary in the class obtains a vested interest. * means if says 'my children' -- class closes upon death (because children get vested interest upon death.) * If says however 'my grandchildren who reach 21' - class closes when first grandchild reaches age of 21 (getting the vested interest.) So grandchildren born after this would be excluded.

Question 57

Lapse of gifts

Answer 57

Occurs if beneficiary dies before testator. Pecuniary legacies → fall into residuary estate. Residuary gift → may create intestacy.

Question 58

How are joint gifts treated?

Answer 58

Joint tenants (default): Gift held jointly. If one dies first, survivor takes all. - Example: “I give £800 to A and B” → A dies first, B gets £800. Tenants in common: Words show separate shares (e.g., “jointly and equally”, “to be divided equally”). If one dies first, their share lapses to residue. - Example: “I give £800 to be divided equally between A and B” → A dies first, B gets £400, A’s £400 lapses.

Question 59

What wording usually indicates a joint gift is as tenants in common?

Answer 59

Words of division like: - “jointly and equally” - “share(s)” - “to be divided” - “equally between / among” These indicate separate shares, so if a beneficiary dies first, their share laps.

Question 60

What is the purpose of s.33 Wills Act 1837 and when does it apply?

Answer 60

Prevents lapse of gifts to the testator’s issue if the intended beneficiary predeceases. Applies only to **issue, meaning children or remoter descendants** (not siblings, nieces/nephews!! ). The gift passes to the predeceased’s issue alive at the testator’s death, unless a contrary intention is expressed. Example: T’s child A predeceases, leaving B & C → B & C inherit A’s share equally. ## Footnote Think double issue rule.

Question 61

How does s33 Wills Act 1837 interact with contingencies?

Answer 61

* **Purpose**: Prevents lapse if a beneficiary (child or remoter descendant) predeceases the testator by allowing their issue to inherit. * Vesting contrast with intestacy: Under intestacy, substituted beneficiaries typically take subject to age contingencies (e.g., must reach 18). Under s.33, issue of predeceased beneficiary inherit immediately, without needing to reach 18, unless the original gift had an express contingency. * EXCEPTION: Carrying over contingencies: Case law (Naylor v Barlow 2019) suggests any condition on the original gift (e.g., age requirement) applies to the substituted gift. * Best practice: clearly state substitutions and contingencies in the will. * Exclusion: s.33 can be expressly excluded by wording in the will. ## Footnote NB: this clause kicks in only where will is silent. if will itself provides for substitution clause, then go by that (and so assumption of contigency carrying on doesn't apply in same way, just read what will says.)

Question 62

What is required for gifts to charities and unincorporated associations

Answer 62

Clearly identify organisation (name, address, charity number). Consider registered status (IHT implications). Provide for: name changes, amalgamation, ceasing to exist. State who can give valid receipt (commonly treasurer). Example clause: Legacy payable to charity, if charity ceases to exist, pay to similar body; treasurer’s receipt valid. Cy-près doctrine!

Question 63

What is the Cy-pres doctrine?

Answer 63

Gifts for 'general charitable purposes' may be redirected under s.62 Charities Act 2011 if original charity cannot receive, so can go to similar charity with similar purposes if og gift cannot be given effect.

Question 64

If a testator gives a gift to a child who is under 18 at the testator’s death, is the gift vested or contingent?

Answer 64

* **Vested interest**: The gift is absolute and belongs to the child, even if under 18. * **Effect of minority**: The gift is held on trust until the child reaches 18 (cannot give good receipt), unless the will expressly allows otherwise. * Not about age: vesting occurs at death of the testator, regardless of the child’s age. * Contingent gifts: Only arise if the will imposes a condition (e.g., must reach 21).

Question 65

Can lay executors charge for their work?

Answer 65

No they cannot - if will silent on it. Statute steps in to say cannot (can only get back reasonable out of pocket expense, such as having to travel somewhere - can be paid out of expense.) Contrast here with professional executors. But if have charging clause within will - then yes.

Question 66

What is the general rule for including provisions / docs in a will?

Answer 66

Provisions should usually be contained in one properly executed document. If you want to make changes / additions - should do so by using a codicil or by revoking the original will and executing a new one. However, an unexecuted will could be successfully incorporated if criteria are met.

Question 67

What are the three criteria for successfully incorporating an unexecuted document into a will?

Answer 67

1. The document must exist when the will (or later codicil) is executed. 2. The will must refer to the document as existing at the time of execution. 3. The document must be clearly identified in the will. ## Footnote Codicil allows later document to be incorporated because it 'republishes' a will Eg: “I leave my collection of antique dolls to each of the people named in the list now to be found in my safe” would satisfy these conditions ! * however if said list that i will write before my death - not satisfactory because not in existence at time of death

Question 68

Does an incorporated document need to comply with s.9 Wills Act 1837?

Answer 68

No, once incorporated it becomes part of the will regardless of execution formalities. Also is not private !! - will become public just like the rest of the will. (When admitted to probate.)

Question 69

What are STEP provisions?

Answer 69

Standard administrative powers for personal representatives and trustees created by the Society of Trust & Estate Practitioners. Are often incorporated into a will (and there is no need for them to be copied out in full.) ## Footnote Eg clause: “The standard provisions and all of the special provisions of the Society of Trust and Estate Practitioners (2nd Edition) shall apply.”

Question 70

What is a letter of wishes?

Answer 70

A non-binding document expressing how the testator would like trustees to exercise discretionary powers. (These are guidance only - not legally binding ! ) * they also are NOT considered as part of will