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LPC Law Notes Private Client Notes

Content Of Will Notes

Updated Content Of Will Notes

Private Client Notes

Private Client

Approximately 235 pages

A collection of the best LPC Private Client the director of Oxbridge Notes (an Oxford law graduate) could find after combing through twenty-nine LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short these are what we believe to be the strongest set of Private Client notes available in the UK this year. This collection of notes is fully updated f...

The following is a more accessible plain text extract of the PDF sample above, taken from our Private Client Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

CONTENT OF WILL

General Principles of Will Construction

  • When the court construes a will, it is attempting to discover T’s intention, BUT the court will only do this from the words in the will.

  • Golden rule: court will attempt to read a will so as to lead to testacy, not intestacy.

  • Words and phrases are, at first, given their ordinary grammatical meaning.

  • Certain words have more than one ordinary meaning, e.g. money – Perrin v Morgan [1943]: includes cash, money in bank, debts owed to T, stocks, etc.

  • The court cannot rewrite the will and does not guess – general rule is that only the words of the will can be considered.

  • However, in certain circumstances, extrinsic evidence from outside the will can be admitted – s.21 AJA 1982

three situations:
  1. Insofar as any part of the will is meaningless

  2. Insofar as language used is ambiguous

  3. Insofar as evidence, other than evidence of T’s intention, shows that language used is ambiguous in light of surrounding circumstances

Commencement Purpose is to identify T’s full name and address – if T uses another name, this should be included here
Revocation Clause Should be included for avoidance of doubt
Disposal of Body Direction only – not binding on executors as no property in a human body
Date Either at the commencement or at the end of the will
Attestation Clause
  • Should always be present in a professionally drawn will

  • Shows that s.9 Wills Act 1837 has been satisfied

  • Can use short form or long form

  • Need to amend if T is e.g. blind or illiterate

Appointment of Executors, Trustees and Guardians

  • Will must appoint persons to administer the estate and to act as trustees of any trust set up by the will

  • Should appoint at least but not more than four – no more than four persons can take out a grant of probate:

    • Individuals – friends and relatives have personal knowledge of T but may lack expertise (should ideally be younger than T)

    • Professionals advisers either individually or as a firm (usual choice) – have expertise but will charge for dealing with estate

    • Trust corporation – will usually instruct solicitors anyway and expensive

    • Public trustee – last resort

  • A testator/testatrix with minor children should consider appointing a guardian

Types of Disposition Examples:
Specific Gifts
  • A gift of a specific, identifiable item of property

  • S.24 WA 1837: a will speaks from death as regards property unless a contrary intention is shown – the use of the word ‘my’ or any other word/phrase indicating ownership at the date of the will shows a contrary intention

  • Doctrine of ademption: if property sold/destroyed/changed in substance, beneficiary receives nothing

  • Gift to a number of beneficiaries with power to select: include order of selection, time limit, and procedure for resolving disputes

  • Specific beneficiaries bear costs themselves in absence of any provision to the contract

  • Consider mortgages (s.35 AEA 1925), tax, and risk of ademption

  • a gift of my gold Rolex watch to A

  • a gift of my 5,000 shares in ABC plc to B

  • a gift of 10,000 to C to be paid out of my account with Barclays Bank (demonstrative)

General or Pecuniary Legacies
  • A gift of property not distinguished in any way from property of the same kind

  • S.55(1)(ix) AEA 1925: pecuniary legacy = “an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all death duties free from which any devise, bequest, or payment is made to take effect”

  • a gift of 10,000 to A

  • a gift of 5,000 shares in ABC plc to B

  • a gift of 10,000 to C to be paid out of my account with Barclays Bank (demonstrative)

Gifts of Residue
  • A residuary gift should always be included to avoid the possibility of a partial intestacy – should:

    • Provide for payment of debts and pecuniary legacies

    • Consider use of a survivorship clause

    • Consider use of substitutional gifts

  • Trust may be required

“I GIVE the sum of FIVE THOUSAND POUNDS (5,000) to each of the charities which I may name in a list to be found with my will

A list of charities was found with the will. Are the charities named in the list entitled to the legacy mentioned in the will?

  • For a document to be effectively incorporated into a will, three conditions need to be complied with:

    1. the document must be in existence when the will is executed

    2. the document must be referred to in the will as being in existence

    3. the document must be identified by the will

  • The list of charities thus fails to be incorporated as the clause does not refer to the list as being in existence at the date of the will.

Administrative Provisions – statutory provisions contained in AEA 1925 Examples:

Common Extensions to
Powers of Personal Representatives

Power to appropriate assets without consent of beneficiary – s.41 AEA 1925

Amending s.41:

  • Remove need for trustees to get consent
    STEP general provision 4.15 does this

  • STEP special provision 22: executors could appropriate within 3 years of death at death value

Jane’s will leaves her personal chattels to her 2 children equally. There is a diamond necklace worth 20,000 and a car worth 20,000.

  • Power of appropriation enables executors to give the car to one child and the necklace to the other

  • S.41 AEA 1925 requires the value to be assessed at the date of...

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