LPC Wills

• In practice to see if the will maker has capacity you should ask them a series of questions. If unsure of this you should get a Dr to make a report concerning capacity. 
• On intestacy, if the house is joint tenants the half will go to the other joint tenant through survivorship. Spouse gains all personal chattels and £250'000. Then whatever is left is split on trust, half for the wife, half to others. 
• Remember to add all the assets into the IHT calculation, even if they pass through survivorship. 
• If you remarry, your will is revoked. 
• The list of who can be PR of an estate is held in the Non Contentious Probate Rules 22. 
• Check the end of the will has been executed properly. Need attestation clause and signatures of witnesses. Check for breaches of s15 eg witnesses being beneficiaries. 
• Installment property- can pay the IHT in 10 annual payments starting 6 months after the death. 
• If this isnt available you may have to sell assets, get a bank loan or borrow from a beneficiary. 

Things passing independently of the will- 

• Joint property passes independently of the will and intestacy rules. Where held by more htan one person as joint tenants. This passes through survivorship. 
• Nominated property- statutory provisions apply to deposits not exceeding £5000 in certain trustee savings banks, friendly society and industrial and provident societies. A nomination is a direction to the institution to pay the money in the account, on death, to a chosen third party. The money will pass regardless of the terms of the will.
• Insurance policies- can take out life assurance for the benefit of a person. Effectively a gift on trust. Can be done under Married Womens Property Act 1882 s11, can express the policy to be for their benefit or policy may be written in trust for or assigned to the named beneficiary. 
• Pension benefits- often a lump sum calculated on the basis of the employees salary at the time of his death paid by the trustees of the fund to family or dependents chosen at their discretion. Can leave a letter of wishes of who they want it to go to but this isnt binding. 

When deciding who is entitled to assets, always deal with assets in this order a) property passing independently of the will and intestacy rules b) property passing by will c) property passing under intestacy rules. 

Testator must have necessary capacity and intention and observe the formalities under Wills Act 1837. Once made can be revoked by subsequent marriage, destruction or by later will. 

Capacity-

• must be aged 18 or over and have the requisite mental capacity. Defined in Banks v Goodfellow as 'soundness of mind, memory and understanding.' Must understand a) the nature of the acts and its broad effects b) the extent of his property (although not every single item) c) the moral claims he ought to consider (even if he rejects them). 
• The person who puts forward a will normally has to prove all the necessary elements are present. Normally presume they retained their capacity when they made the will. If there is any doubt the presumption will not apply and PR's will have to prove it under Banks. Now might be under Mental Capacity Act 2005. 

Intention- 

• Must have general and specific intention. Must intend to make a will and intend to make the particular will being executed. 

• Burden of proving this falls on the person who puts the will forward. A testator who has capacity and executed his will, having read it, is presumed to have requisite knowledge and approval. Some situations doesnt apply.
• Testator blind/illiterate/not signing personally- the probate registrar will require evidence to prove knowledge and approval. Usual in such cases to include a statement at the end stating the will was read to the testator who knew and approved the contents. 
• Suspicious circumstances- eg will prepared by a major beneficiary. Person putting forward needs to remove suspicion. Gill v Woodall- RSPCA did not prove Gill had known and approved the contents. Need to follow SRA Code to act with integrity and best interests. Shouldn't act if there is a significant risk of conflicts as there would be when someone prepares a will which benefits himself. Chapter 1 IB says refusing to act when a client proposes to make a gift of significant value to you or a member of your family, or a member of your firm unless they get independent legal advice. 

Undue influence and mistake- 

• Where a testator with capacity appears to have known and approved the contents, anyone who wants to challenge it needs to prove one of the below to stop it being admitted to probate. 

There are no presumptions. 

• Force, fear, fraud or undue influence- makes a will invalid if proven. It is necessary to prove undue influence in relation to a will which is different to a lifetime gift. The need for proof makes it very hard to suceed. Need to collect evidence from friends, family and carers. 
• Mistake- any words included without the knowledge and approval of the testator will be omitted from probate. Need to distinguish between actual mistake (absense of knowledge and approval) and misunderstanding as to the true legal meaning of the words used. In the latter case, the words will not be omitted. 

Formalities- 

s9 of the Wills Act 1837 states when the will will be valid. s11 says that wills made by active military service or mariners at sea is valid and can be in any form including mere oral statement. Only requirement is that the testator intends to dispose of property on death. 

• Proof and presumptions- s9 must be complied with. If the will includes a clause that s9 formalities were observed, there is a presumption of due execution. 

• The will is valid unless there is proof that the formalities were not observed. This is an attestation clause. If it does not include one, the district judge or registrar must require an affadavit of execution to identify the testators signature or refer the case to a judge. 
• Witnesses- no formal requirements for the capacity of witnesses, but must be able to understand the significance. If either of the witnesses is a beneficiary or is the spouse or the civil partner of a beneficiary the will remains valid but the gifts to them fail (s15). If the will is returned to the solicitor for storage, they are under a duty to check to see if s9 and s15 have been complied with. 

Revocation-

A will can be revoked. Under s20 Wills Act 1837 a will can be revoked in whole or in part by a later will. The later will will usually contain a clause revoking earlier wills. If it does not contain this, it can still revoke by implication to the extent that the two wills are inconsistent. Exceptionally court may decide that revocation was conditional on an event. If that condition is not satisfied, then the revocation may be invalid, making the earlier will valid. 

• Marriage or civil partnership- if the testator remarries after making a will, the earlier will is 

• revoked automatically (WA 1837 s18). Doesnt apply if they make a will in anticipation of marrying a particular person and dont intend for it to be revoked. Conversion of a civil partnership to marriage does not revoke the will. If they make a will and later divorce, the will remains valid but a) provisions of the will appointing the former spouse as executor or trustee take effect as if the former spouse had died on the date the marriage was dissolved or annulled and b) any property or interest in property, which is devised or bequeathed to a former spouse passes as if the former spouse had died on that date.
• By destruction- a will may be revoked by 'burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. (WA 1837 s20). A will destroyed accidently or by mistake is not revoked. If its contents can be reconstructed, an order may be obtained to admit it to probate as a valid will. Physical destruction is required, symbolic destruction is not enough, although if a vital part is destroyed this may be held to invalidate the entire will. If the part destroyed is less substantial, then partial destruction may revoke only that part which was destroyed. 
• Alterations- alterations are invalid unless it can be proved they were made before the will was executed, or unless the executions are executed like a will (initials of the testator and witnesses in the margin beside the alteration are sufficient for this.) If there are invalid 

• alterations the original wording will stand if the original words are still readable. Again the court may decide the testators intention to revoke the obliterated words was conditional only. 

How a will takes effect- 

Need to consider property owned and if the people named in the will survived the testator. Need to find people matching the description of the beneficiaries. 

• Property passing- basic rule is s24 WA 1837 which says that with reference to the real estate in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless contrary intention should appear in the will. 
• Ademption- a specific legacy will fail if the testator no longer owns the property on death. Gift is 'adeemed'. If the asset has been retained but changed nature, the question is whether the asset is substantially the same, having changed name or form, or whether it has changed in substance. Only change in substance will adeem the gift. If they dispose of the property described in a specific gift, but acquire a different item with the same description eg car, the gift is adeemed. Referring to 'my car' can be contrary intention under s24. 

• Testator may wish to change the will in a minor way which is a supplementary codicil. To be valid must be executed the same way as a will. 
• Has the beneficiary survived the testator? A gift in a will lapses if the beneficiary dies before the testator. If a legacy lapses, the gift falls into residue unless the testator has provided a substitutional gift. If a gift of residue lapses, it goes under the intestacy rules. 
• Law of Property Act 1926 s184- if the deaths of the testator and beneficary occur very close together, need to establish who died first. If it cannot be proved, statute provides that the elder of the two died first. 
• Survivorship clauses- gift conditional on the survival of beneficaries for a specific period of time after the death to prevent the gift from taking effect where the beneficiary only survives a short period of time. 
• Lapse of gifts to more than one person- a gift by will to two or more people as joint tenants will not lapse unless all the donees die before the testator. If the gift contains words of severance, the principle doesnt apply and they only get their share. The lapsed share will pass under intestacy rules unless the testator made a substitutional gift. For a class gift, there is no lapse unless all members die before the testator. 

• s33 WA 1837 for gifts to children and remoter issue do not lapse where that beneficary dies and has issue of his own who survive the testator. It passes to the beneficaries issue. Take what their parent would have got in equal shares. 
• Forfeiture- cannot inherit from a person you have been convicted of killing. Applies in murder and manslaughter. In manslaughter the killer may apply within 3 months of conviction for relief from forfeiture rules under Forfeiture Act 1982. Time limit is strict. 
• Beneficiaries- when given names, you need to find them. There may be doubt where there is a class. Adopted children are usually treated as children. In case of succession of property, it is irrelevant whether the childrens parents are married. 

Intestacy rules- 

Contained in the Administration of Estates Act 1925. May be full or partial. Rules only apply to property capable of being left by will. 

• Rules impose a trust over all property. Includes a power of sale that the PR's must pay funeral, testamentary and administrative costs and debts of the deceased. Balance remaining 

• is the residuary estate to be shared among the family under the rules of distribution in s46 AEA.
• Spouse or issue- spouse is the person whom the deceased was married to on his death, whether or not they were living together. Divorced spouse is included. Cohabitee has no rights. Issue means all direct descendants of the deceased. 
• Entitlements- where survived by spouse and issue the residuary estate is distributed as a) the spouse recieves personal chattels absolutely b) recieve a statutory legacy of £250k free from tax and costs plus interest until payment. Rate of interest is Bank of England rate on the end of the day they died c) the rest of the residuary estate is divided in half. One half is held on trust for the spouse absolutely. The other half is for the issue. Spouse must survive 28 days to get hers. 
• Applying statutory trust- a) primary beneficaries are the children of the intestate who are living at the time of death b) the interests of the children are contingent upon attaining the age of 18 or marrying before then. Any child who fulfills this gains a vested interest. c) if any child predeceases the intestate, any child of the deceased who are living take their deceased parents share between them equally on age of 18. This is 'per stirpes' distribution. d) if children or issue die before gaining a vested interest, their interest fails and its like they didnt exist. 

• However s3 of Estates of Deceased Persons Act 2011 provides if they die without getting vested interest, but leave issue, they will be treated as having predeceased the intestate so they can be replaced by their own issue. 
• If matrimonial home forms part of the estate passing on intestacy the surviving spouse can require the PR's to appropriate the home in full or partial satisfaction of any absolute interest in the estate. If property is worth more than the interest, the spouse may still require appropriation provided he pays the difference in 'equality money to the estate.' 
• Spouse and no issue- the whole estate goes to the spouse absolutely. Other relatives are not entitled. Must survive 28 days. 
• Distribution where no surviving spouse- divided between the relatives on the highest category below- a) issue on statutory trust b) parents, equally if both alive c) whole brothers and sisters on statutory trust d) half brothers and sisters on statutory trust e) grandparents, equally if more than one f) uncles and aunts of the whole blood on statutory trust g) half blood aunts and uncles h) the Crown. 
• Statutory trust- members of the specified class take the estate equally and issue of the deceased relative may take that share. Adopted children are children and adopted family are family. 

• Where estate passes to the crown, they have the discretion to provide for dependents of the intestate or other persons whom the intestate might reasonably have been expected to make provision. 
• Inhertiance (Provision for Family and Dependents) Act 1975- certain people who may be aggrieved for being left out of a will or not inheriting on intestacy, can apply for benefit from the estate following the death. Application must be made within 6 months of the issue of grant of representation (s4). Court has discretion to extend the limit. Family can make a claim as can anyone who immediately before death was maintained by him wholly or inpart or who lived in the same household as the deceased for the whole two years immediately before death. 
• The ground for the claim is that 'the disposition of the estate effected by his will or intestacy is not such as to make reasonable financial provision for the applicant.' s1(2) gives two standards for judging 'reasonable financial provision.' 'Surviving spouse standard'- allows a surviving spouse such financial provision as is reasonable in all the circumstances 'whether or not that provision is required for his maintenance.' 'The ordinary standard'- applies to all other category of applicant and allows such financial provision as would be reasonable in all the circumstances for the applicant to recieve for his maintenance.' s3 gives factors the court takes into account- financial resources and needs of the applicant now and in the foreseeable future...

• the deceased's moral obligations towards the applicant, the size and nature of the estate, physical and mental disability of the applicant and anything else that may be relevant eg conduct. 
• The court has wide powers to make orders against the 'net estate' including orders for periodical payments, lump sums or transfer of specific property. Net estate can include a share of joint property passing through survivorship if the court orders. The court will declare how the benefit is to be borne, eg which beneficiary loses out. 
• PR's should be advised not to distribute the estate until 6 months has elapsed from the issue of grant. They must also not distribute if they have notice of a possible claim. If PR's distribute and a successful claim is brought, they will be personally liable to satisfy the claim if insufficient assets remain. Where the court permits an application out of time, they will not be liable personally but claimant may have to recover property from the beneficiaries. 

• The executor must get a 'grant of representation' to be able to transfer the assets of the deceased. One executor may obtain the grant and act alone. This is so even if the estate contains land to be sold because receipt for the proceeds of sale from one executor is sufficient for a purchaser. For administrators, one is normally enough but where a will or intestacy creates a life or minority interest, two administrators are normally required. An executor derives the authority to act from the will but the grant of probate confirms the authority. They will have limited authority until the grant is given.
• First steps- need to find the will and give a copy to all executors named. Give immediate consideration to the terms of the will as to what to do with the body. Need to obtain details of the deceased's property and outstanding debts. Should ask the bank. Begin to evaluate the size of the estate and liability for inheritance tax. Must establish the indentity of beneficiaries and nature and extent of their entitlement. If intestate, need to know who in the family is surviving. 
• If PR's fail to pay someone who is entitled as a beneficiary or creditor, they will be personally liable to that person. Can protect themselves against claims by advertising for claimants under s27 of the Trustees Act. Provided they wait two months they will be protected from future liability. However the claimant will still have the right to claim back assets from the beneficaries who recieved them. 

• In relation to unknown claims- need to advertise as early as possible. If executors, any time after death, adminstrators any time after grant. Should give notice of intended distribution of the estate in the London Gazette, advertise in a newspaper circulating the district in which the land owned is situated, and other similar notices. Each notice must require the person interested to send particulars of claim within the time specified, which must not be less than two months. Should make searches on the land to reveal the existence of liability in relation to the deceased's ownership of an interest in land. When the time limit runs out, they can distribute the estate, taking into account claims which they have actual knowledge of, or discover from the notices. Not personally liable for any other claim. Trustee Act s27 doesnt give protection to PR's who know there is a person with a claim but cannot find him. Protects only against unknown claims. 
• Missing known creditors or beneficiaries- where they cannot trace one they must consider the following. A) keeping assets back in case they appear- unpopular with beneficiaries. B) taking indemnity from beneficiaries that they will meet claims if the claimant appears. Dangerous for the PR as beneficiaries may not have assets at that point. C) insurance but this can be expensive and hard to know what sum to insure. D) applying for a court order to distribute as if the beneficiary is dead. Benjamin order (Re Benjamin 1902). Protects PR but claimant ...

• gets right to recover from beneficiaries. Applying to court is expensive but only one that offers PR's full protection.
• May not need a grant of representation. Have to pay a fee to Probate Registry. The fee is flat no matter estate size. Grant may not be required where under Administration of Estates (Small Payments) Act 1965 payments under £5000 can be paid to a person appearing beneficially entitled to the asset. Payment discretionary from institution concerned and will need grant if refused. Include National Savings Bank, Premium Bonds and money in building societies. Chattels which are moveable objects can normally be sold without PR's having to prove formally to buyers that they own it. Dont need a grant for cash that is found in the deceased's possession. 
• Assets not passing through the PR's hands- joint property- passes through survivorship. Any grant is irrelevant as it doesnt go through the PR's. Survivor can prove by producing death certificate. Property not in the estate- eg life insurance for the benefit of a person, the dead has no beneficial interest in it so it will not be inheritance taxed. Pension benefits- often payable to a person selected by the pension fund trustees. Payments are made to beneficiaries on production of death certificate. 
• Applying for grant- need to apply using forms. Reciepted IHT421 confirming payment of inheritance tax. 

• The deceased's will and two A4 photocopies. The original will must be signed by the executors and the solicitor before whom the supporting oath is sworn. The oath, sworn by the executors and adminstrators. Any affadavit evidence which is required. Probate court fees- £155. Need to admit the will to probate by checking it is validly executed under WA 1837 s9 and has an attestation clause raising a presumption of due execution. 
• The registrar will issue the original grant, sealed with a court seal and signed by him. If the state of the will indicates tampering, the registrar will want thorough explanation. A will which is known to have been made but is lost is considered revoked. 

Completing the IHT account-

• Need to do to obtain grant of representation. PR's prepare a IHT400. This is an inventory of assets to which the deceased was beneficially entitled and of his liabilities, the form for reliefs and exemptions and calculating tax due. Should be delivered within 12 months of the end of the month when death occurred. Usually try for 6 months. Where tax is payable need to apply for a reference number before submitting the IHT400. Application can be made online or by IHT422. IHT payable on all property the deceased was beneficially entitled to before death whether or not it passes through his PR's. 

• IHT must be paid within 6 months before the end of the month in which the death occurred. Failure to do so means interest becomes payable. Where there is property which installments will be paid for, none of the tax on the property is due until the expiry of the 6 month period. 
• Funding IHT- tax needs to be paid on delivery of IHT400 and should be sent to HMRC with the account. When this is paid, a reciepted Probate Summary IHT421 is sent with other documents to the appropriate probate registry so the grant can be issued. 
• Sometimes can pay tax directly from the deceased's accounts if the institution agrees. PR's must complete a separate IHT423 for each bank from which money is to be transferred. 
• Life assurance- where the proceeds are payable to the estate they may be willing to release them directly to HMRC.
• Can realise assets of up to £5000 without a grant. If very small amount of IHT to pay could consider this. 
• Wealthy beneficiaries may fund from their own resources as long as they recieve it back. 
• Bank borrowing- may get a loan with an undertaking that it will be repaid by the PR's. Expensive as bank will charge an arrangement fee and interest. 
• Taxpayers can offer HMRC an asset in lieu of tax (IHTA s230(1)). Sec of State must agree to the object which is 'pre-eminent for its national, scientific, historic or artistic interest.' 

• Requirements for IHT account- IT (Delivery of Accounts) (Excepted Estates) Regulations 2004- if excepted estate no need for an IHT400 to be submitted, although HMRC can demand one. If think its excepted estate but turns out not to be, you have 35 days from the day of discovery to submit one. 
• Category 1- small estates- where gross value of estate, plus chargeable value of 'specified transfers' in 7 years prior to death, does not exceed the nil rate band. Can be added spouses nil rate band as well as long as whole. 
• Category 2- exempt estates- where the bulk of the estate attracts spouse or charity exemption. Gross value of estate and specified transfers must not be more than £1m and must not exceed nil rate band when the exemptions are removed. Can have increased nil rate band again but only if whole. 
• Category 3- non domiciled estates- where the deceased was never domiciled in the UK with only limited assets in the UK. (IHTA 1984 s276). The gross value in the UK must not exceed £150k. 
• Specified transfers- chargeable transfers of cash, personal chattels or tangible moveable property, quoted shares or securities, or interest in land made in 7 years before death. If someone makes a transfer of non specified transfers it cannot be an excepted estate. 

• Transfers of values which are exempt under one of the following exemptions- s18 spouses, s23 charities, s24 gifts to political parties, s24A gifts to housing associations, s27 maintenance funds for historic buildings or s28 employee trusts. 
• All applications for probate in relation to excepted estates must be accompanied by Form IHT205 or IHT207 for those domiciled abroad. 
• Form IHT400- PR's must complete and sign a declaration contents are true. Must calculate tax and pay on delivery. HMRC reciept the accompanying IHT421. When PR's apply to probate registry they must file the reciepted IHT421 with the probate papers as proof that the relevant inheritance tax has been paid. 

Oaths-

• Every grant of representation must be supported by the appropriate form of oath. They give details of deceased, set out the basis of the applicants claim for grant, require applicant to swear he will adminster estate correctly, identify and exhibit the will and codicils, and swear to the value of the estate passing under the grant. 
• PR's must swear the truth of the contents of the oath before a commissioner for oaths or solicitor with practicing certifcate. Send to probate registry with the will, IHT account and fees.

• Oath must include gross value of the property and net value. Net figure is the probate estate on which probate fees are payable. Value of property passing by survivorship isnt included. Reliefs are irrelevant for this purpose. Must round up the net value to the nearest whole thousand and state on the oath that it doesnt exceed that figure. 
• Oath for executors- appointed by will and take grant of probate. One executor is sufficient to act alone. Capacity to act is judged at time of application. If a minor is the only executor, someone must act on his behalf. 
• If testator appointed his spouse as executor and they divorce, the appointment fails unless they show contrary intention in the will (s18 WA). 
• Renunciation- any person appointed as executor can renounce their right to take grant provided they have not intermeddled in the estate. Renunciation must be made in writing, signed by the person renouncing with a witness and filed at the probate registry. Executors also appointed as trustees will remain, and will only cease if they disclaim that as well. 
• Any number of executors can be appointed in the will but probate will be given to a maximum of 4. 
• Oath for administrators with will annexed- where there is a valid will but no executor can/will apply for probate. If valid will with no executor and will does not dispose of whole estate

• the appopriate grant is still letters of administration with will annexed. The property not disposed of by the will is distributed according to intestacy rules. 
• The Non- Contentious Probate Rules 1987 r20 states priority of people entitled to a grant of letters of administration. Any person in category B or below must explain why no-one higher can do it- 'clearing off'. A) Executor- first right to grant. B) any residuary legatee or devisee holding in trust C) any other residuary legatee or devisee or any person entitled to a share in the undisposed residue. D) the personal representative of a deceased residuary legatee or devisee. E) any other legatee or devisee or any creditor of the deceased. F) the personal representative of any other legatee or devisee or of any creditor. 
• Where there is more than one person of equal rank and one has a vested interest, they prefer those with a vested interest, to contingent. 
• Grant will not be issued to more than 4 adminstrators. (Senior Courts Act 1981 s114). Where two or more people are entitled to the same degree, a grant can be made on the application of either one of them. Where life interest or property passes to a minor, the court normally requires at least two administrators to apply for the grant. s114(2) gives the court power to say one suffices. Can renounce like an executor, but intermeddling does not prevent this. 

• Oath for administrators- where deceased died intestate. Persons entitled are in the NCPR 1987 r22 and order is the same as intestacy. Children- adopted count but step children do not. Brothers and sisters- whole or half blood. 
• Clearing off- must do same process as above. Spouse is the highest level so dont need to explain clearing off to the oath. 
• Unless the applicant is the Treasury Solicitor or creditor, he must have a beneficial interest in the estate by the intestacy rules. 
• Maximum of 4 administrators again. Same rules as above. 
• Effect of grant- grant of probate confirms the authority of executors which arises form the will and date of death. Conclusive proof of title to the contents of the will. Same with adminstration. Until grant is issued an administrator has not authority to act. 
• Chain of representation- s7 AEA says that where an executor dies and appoints his own executor, that person automatically becomes the executor of the original estate. Cannot refuse this. s7 says they have the same rights as if original executor and is answerable as if he was the original testator. 
• Grant de bonis non adminstratis- must be obtained where chain is broken and administration is not complete. Two requirements- a) must have been a prior grant of probate to the PR 

• who has now died and b) the chain of representation does not apply. The grant de bonis will issue to the person who wouldve been entitled had the original PR never taken the grant. Order of priority depends on NCPR 1987 r20 or 22. 

Caveats and citations-

• Caveats (NCPR 1987 r44) to prevent the issue of the grant of representation. Person lodging the caveat is the 'caveator.' Might be used when they believe the person lacks the mental capacity or validity of the will. 
• Citations- (NCPR 1987 r46) if the person who initially is entitled to take the grant under r20 or r22 refuses and then also refuses to renounce, the estate would remain unadministered. Citation to take probate- may be used when intermeddled but never get probate. Once cited, the executor must proceed with application for probate. If they do not, the citor can get a court order to have him passed over, and grant of letters of admin with will annexed to the next person. 
• Citation to accept or refuse grant- standard method for clearing off any person with a prior right to any type of grant who has not applied and shows no intention to. If the person cited doesnt take steps to take out grant, may be issued to the citor. 

• Alternatives to citation- not a good idea to compel an unwilling person to do it. If a person is unwilling it is preferable to apply to the Probate Registry under SCA 1981 s116 for an order passing over that person in favour of someone else.