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LPC Law Notes Private Client Notes

Wills Notes

Updated Wills 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:

(Legal Foundations p.344)

When deciding who is entitled to take assets following a death, always deal with the assets in the following order:

  1. Property passing independently of the will and intestacy rules;

  2. Property passing by will;

  3. Property undisposed of by will and therefore passing under intestacy rules

Joint Property

P.344

  • If property held as JT in equity property passes by survivorship to the other JT; (houses, bank accounts etc.)

  • This is unlike TICs where the share of the deceased pass under will or intestacy rules.

Nominated Property

Page 344

  • A nomination is a direction to the institution to pay the money in the account, on the death of the investor, to a chosen (“nominated”) 3rd party.

  • Some statute allows an individual to nominate what happens to certain property/funds (e.g. trustee savings banks, friendly or industrial or provident societies) after death;

  • Applies to deposit NOT exceeding 5,000;

  • Few statutes allow new nominations to be made (those in existence are already valid).

Insurance Policies

Page 344

  • Normally, on death life assurance policies will go to Personal Representative (“PRs”) for distribution in accordance with the will/intestacy rules;

  • Life assurance policies can be expressed as for the benefit of a specified individual in two ways (so deceased doesn’t own property beneficially upon death):

    • s.11 Married Woman’s Property Act 1882: can create a trust in favour of spouse and/or children;

    • A policy expressly written in trust for assigned or named beneficiaries.

Pension Benefits

Page 345

  • Death in Service Benefits (Employer pays a lump sum if employee dies),

  • It is normally calculated with reference to the deceased’s salary and it is paid independently of the will by the pension fund trustees to the dependents at the trustee’s discretion under a ‘letter of wishes’ (which is not legally binding but the Pension Fund Trustees normally abide by D’s wishes)

Trust Property
  • This will pass according to the terms of the trust, not the will;

  • However, an interest in remainder under a trust can pass according to a will, or under intestacy

T&F NOTE
  • If the Deceased’s Insurance Policy, Pension Benefits and Trust Property are payable to the deceased’s Estate, then the deceased PRs are able to dispose of the proceeds of the Policy, the Pension and the Trust by will.

Requirements for a Valid Will (p.345)

General

Page 345

In order to create a valid will a testator must have:

  1. Capacity

  2. Intention and,

  3. Must observe the formalities (s.9 Wills Act Below) for execution of wills under the Wills Act 1837

Once the will is made it may be revoked by:

  1. subsequent marriage or

  2. The formation of a civil partnership,

  3. By destruction or,

  4. By a later will

Capacity

Page 345

  • Testator is 18 or over;

  • Requisite mental capacity of “soundness of mind, memory and understanding” as per Banks v Goodfellow the testator must understand:

    • The nature of his act and its broad effects;

    • The extent of his property;

    • The moral claims he ought to consider (even if he rejects them)

  • Mental Capacity Act 2005 doesn’t apply to wills (Testator must not suffer from insane delusion);

  • There is a presumption, at common law, that capacity existed when testator made his will;

  • Burden of proof rests with those alleging lack of capacity.

Intention

Page 346

  • Must have general (to make will) and specific (contents of will) intention as to the will;

  • There is a general presumption that testator has intention. Presumption won’t apply if testator is:

    • Illiterate, blind or not signing in person (here, some sort of signed statement/other evidence is required to prove knowledge & approval)

    • Suspicious circumstances (e.g. prepared by beneficiary). Note O(2.4): where client gives to sol/sol’s partner or member of firm/families, the gift is significant and sol should advise client to take independent advice and refuse to act if they don’t seek it.

  • Burden of proof is on those alleging lack of intention & must prove that will was made under:

o Force, fear (actual/threatened), fraud or undue influence or,

o If Mistake – “actual mistake” - only absence of knowledge and approval will invalidate Will, not misunderstanding of true legal meaning of words. Page 347

Formalities

(Under

s.9 Wills Act 1837)

Page 347

  • Under s.9 Wills Act 1837: the will must be:

    1. signed writing by testator or by other person in his presence & under his direction;

    2. testator signed to give effect to the will i.e. had intention (even if wrong will)

    3. at least 2 witnesses are present when testator signs. The Witnesses must :

(i) understand the significance/extent and of the will and,

(ii) Under s.15 Wills Act 1837 if a beneficiary or their spouse/CivPart witnesses the will, the will remains valid but the gift to that beneficiary will fail.

  1. Witnesses need not be there at the same time to sing themselves but testator must.

  • A will made on military serv. or by a seaman at sea is valid even if it is only oral (Ayling v Summers)

  • If attestation clause is included, presumption of due execution.

  • If attestation clause not included, an affidavit of witness or affidavit of handwriting evidence will be required.

T&F NOTE If an executor is a witness to a will it does not make the will invalid and it does not prevent the executor acting.A gift can be validly made to an executor in a will and the gift does not prevent the executor from acting.

Revocation

(Testator can revoke will at any time. 3 ways of revoking a will :)

Page 349

  1. Under Wills Act (WA) 1837 s.20 by a later valid will or codicil (both impliedly or expressly)

  2. WA s.18: By testator marring or forming a civil partnership the will is automatically revoked

  • WA s.18(3) unless will was made when testator was expecting to marry and did not intend it to fail

  • WA s.18A: post-divorce will is still valid, but if spouse was executor, spouse is treated to have died on divorce date so gift to spouse or civil partner fails.

  1. Full...

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