Notes & Practice on Wills & Administration of Estate

What are the requirements for a valid will?

To create a valid will, the person making the will (testator) must have the mental capacity to understand and make the decision to create a will. Additionally, the will must meet the formal requirements outlined in the Wills Act 1837. These formal requirements include specific rules for how the will should be written and signed.

What is mental capacity and incapacity?

Mental capacity refers to a person’s ability to think and make decisions. It is not determined solely by the presence of a disorder, illness, or impairment. Instead, the law considers whether a person’s cognitive ability is sufficient to understand and carry out a specific action or decision. Mental capacity can vary and may be affected by factors such as illness or impairment. It is important to assess whether a person had the capacity at the time the decision or action was made.

What actions are required if the testator is blind or illiterate?

If the testator is blind, illiterate, deaf and unable to talk, or if someone else signs the will on their behalf, additional steps are required to ensure the validity of the will. In such cases, the will must be read to the testator in their presence, and they must indicate their approval of the contents. The attestation clause in the will should be adjusted accordingly. If the attestation clause is not suitable, an affidavit of knowledge and approval may be required by the probate registry.

What happens if a will is partly written in ink and partly in pencil?

A will must be in writing, which can include handwritten, typed, printed, or other visible forms. However, if a will contains both ink and pencil writings, there is a presumption that the pencil writing represents the testator’s tentative considerations rather than their final decisions. Unless the court determines that the pencil writing reflects the testator’s final intentions, it will not be considered part of the will.

Executors, also known as Personal Representatives (PRs), are responsible for managing the assets and affairs of a deceased person. They can be appointed either through a will or by the court if there is no will available.

The role of PRs involves handling tasks such as collecting the deceased person’s assets, paying off debts and taxes, and distributing the remaining property according to the person’s wishes or legal requirements.

If a will exists, it typically names one or more executors who will serve as PRs. The executor’s main duty is to carry out the instructions stated in the will, which may include distributing assets, settling debts, and making funeral arrangements.

Here are some important points about executors:

1. Eligibility: Executors must be at least 18 years old and mentally competent. Apart from these requirements, there are no specific qualifications for being an executor.
2. Types of Executors: There are two types of executors:
   • Sole Executors: When only one executor is appointed, they become the sole executor of the estate.
   • Joint Executors: If more than one executor is appointed, they will act as joint executors, requiring them to collaborate in managing the estate.

To appoint executors in a will, follow these steps:

1. Use a title such as “Appointment of Executors” or “Appointment of Personal Representatives” to begin this section of the will.
2. Provide the full name and address of the person being appointed as the executor(s). If multiple executors are being named, list their names and addresses in the order they should act.
3. Include a statement clarifying whether the executor(s) can act jointly or independently.
4. Specify any conditions that must be fulfilled before the executor can take action, such as obtaining probate or posting a bond.
5. If a substitute executor is being appointed to serve if the primary executor is unable or unwilling to act, state their full name and address.
6. Conclude the appointment section with a statement declaring that the appointment of the executors takes effect upon the testator’s death.

How can alterations in a will be made valid?

To ensure the validity of alterations in a will, they must be executed as a proper will. This means that the testator’s signature and the subscription of witnesses must be made near or opposite the alteration, either in the margin, at the foot or end of the will, or on a memorandum referring to the alteration. These requirements are stated in section 21 of the Wills Act 1837.

• If alterations are made after the will is executed, they will only be valid under two conditions. First, both the testator and at least two witnesses (even if not the original ones) must initial the alteration. Second, the entire will, including the alteration, can be re-executed or confirmed through a codicil that explicitly refers to the alteration.
• If an alteration in a will is deemed invalid, but the original wording can still be deciphered through normal means (such as reading or holding it up to the light), the alteration will be disregarded. The original wording will be accepted for probate. In such cases, a clean copy of the will, without the alterations, would be required by the probate registry.
• If the alteration in a will is considered invalid and the original wording is no longer recognizable, the altered portion is considered revoked. The will is admitted to probate with a blank space where the alteration was located.

What is a codicil?

A codicil is a testamentary instrument that must be executed in the same way as a will to be accepted for probate. It supplements the terms of an existing will. A codicil can be used to add provisions to a will, modify existing provisions, or revoke provisions in a will.

A codicil effectively “republishes” the will to which it refers, as if the will itself were executed on the date of the codicil’s execution. When interpreting the will, the date of the codicil is used. For example, if the will contains a gift to “the youngest son of A,” the gift will go to A’s youngest son at the date the codicil (not the will) was executed.

The requirements for a valid codicil are the same as those for a valid will. Therefore, a codicil needs to be signed and witnessed in the same manner as a will.

What is the revocation of a will?

Revocation refers to the formal act of withdrawing a will. According to section 20 of the Wills Act 1837, a will is always revocable by the testator during their lifetime, as long as they have testamentary capacity. However, the equitable doctrine of mutual wills may impose a trust on the testator’s property, preventing them from revoking their will in certain circumstances.

A testator’s intention to revoke a will can be absolute or conditional. If it is absolute, the revocation takes immediate effect. If it is conditional, the revocation will not take effect unless the condition is fulfilled.

There are four established methods of revoking a will:

(1) creating a later will or codicil,

(2) expressing a written intention to revoke,

(3) destroying the will, and

(4) getting married or entering into a civil partnership.

What are the intestacy rules?

Intestacy rules determine what happens to a person’s money, property, and possessions when they die without a valid will. These rules are applicable in England and Wales.

Who inherits an estate according to the rules of intestacy?

The order of priority for inheriting an estate is set out in the Administration of Estates Act 1925 (AEA 1925), with significant changes made by the Inheritance and Trustees’ Powers Act 2014 (ITPA 2014).

Here is the current order of priority:

1. If there is a surviving spouse but no children, the spouse inherits the entire residuary estate.
2. If there is a surviving spouse and children, the spouse receives the deceased’s personal chattels and a statutory legacy (currently £270,000), with the rest of the estate divided equally between the spouse and the children.
3. Prior to ITPA 2014, 50% of the residue would have been held in a life interest trust for the spouse.
4. If there is no surviving spouse, the estate passes to the children of the deceased. This includes legitimate, illegitimate, or legitimated children, as well as children adopted by the deceased. Step-children and foster children are not entitled.
5. If there are no children, the parents of the deceased inherit the estate. If both parents are alive, they share equally. If only one parent is alive, that parent inherits the entire estate.
6. If there are no surviving parents, siblings of the deceased (including their own children if deceased) inherit the estate. Siblings of the whole blood (sharing both parents) have priority over half-blood siblings (sharing only one parent).
7. If there are no siblings or their descendants, the grandparents of the deceased inherit the estate equally.
8. If there are no surviving grandparents, aunts and uncles of the whole blood (or their children) inherit.
9. If there are no aunts or uncles of the whole blood (or their children), aunts and uncles of the half blood (or their children) inherit.
10. If there are no aunts or uncles of the half blood (or their children), the Crown or designated entities (such as the Duchy of Lancashire or Duke of Cornwall) inherit the estate. The Treasury Solicitor handles the estate, and these cases are listed as ‘unclaimed estates’ in the Gazette.

It’s important to note that if any beneficiaries are under 18, their share of the estate is held in statutory trusts until they come of age or marry. If a beneficiary dies before becoming entitled, their share is redistributed among the remaining beneficiaries.

Stay tuned for more notes ………