Acing the SQE/Wills

Wills and Intestacy

Upon a person's death, their estate is distributed either as outlined in their will or via intestate succession if no valid will exists. Intestate succession refers to the legal procedure for asset distribution in the absence of a will. A personal representative is designated to administer the estate, with responsibilities that include securing a grant of representation, settling all debts and obligations (such as inheritance tax), and allocating the remaining assets to the rightful beneficiaries.

Validity of wills and codicils

For a will to be legally valid, it must meet strict formal requirements. The testator (the person making the will) must:

(1) Have legal and mental capacity at the time of creating the will;

(2) Intend to make a will (known as "testamentary intent"); and

(3) Follow proper execution formalities, including signing the will in the presence of witnesses who also sign as required by law.

Failure to meet these conditions may render the will invalid.

Codicils

A codicil is a legal document used to amend, add to, or revoke part of an existing will.

It must comply with the same formal requirements under Wills Act 1837 s.9 to be valid:

• In writing
• Signed by the testator
• Properly witnessed by two witnesses

A valid codicil can republish a will and reaffirm it as of the codicil’s date.

testamentary capacity

To have testamentary capacity, the testator must, at the time of executing their will, have understood: (1) the nature of the act, meaning that they were making a will and its consequences; (2) the extent of their property; and (3) the claims and obligations they should consider when distributing their estate.

duress and undue influence

• Duress: A will has been made as a result of force or fear
• Undue influence: something that overpowers the volition of testator

formal requirements

I. Key Statute: Wills Act 1837 • Main source of law for formal requirements. • Applies to both wills and codicils (amendments to wills). • Codicils must meet the same formalities as wills to be valid.

II. Formal Requirements for a Valid Will

(Wills Act 1837, s.9)

A will is only valid if the following are satisfied:

A. In Writing • The will must be in writing. • Can be handwritten, typed, or printed. • Oral wills (nuncupative wills) are not valid (except in very limited circumstances, e.g. privileged wills for soldiers or sailors).

B. Signed by the Testator • The testator must sign the will (or another person may sign at their direction and in their presence). • The signature must intend to give effect to the will (s.9(a)).

Case: Re Groffman – Will invalid where signature not properly witnessed in presence of both witnesses at the same time.

C. Presence of Two Witnesses • The testator must sign or acknowledge their signature in the presence of two witnesses at the same time. • The two witnesses must then sign the will themselves in the testator’s presence (s.9(b)-(c)).

D. Witness Requirements • Witnesses must be: • Over 18 • Mentally capable • Beneficiaries or their spouses cannot benefit under the will if they act as witnesses. The will is still valid, but their gift fails (Wills Act 1837, s.15).

Tip: Always ensure independent witnesses are used.

E. Order of Signing • Testator must sign before or at the same time as the witnesses sign. • Witnesses must sign in the testator’s presence, but not necessarily in each other’s presence.

III. Additional Notes

A. Capacity and Intent • Testator must have: • Testamentary capacity (Banks v Goodfellow) • Knowledge and approval of the will’s contents

B. Privileged Wills • Exception for soldiers on active duty and sailors at sea (oral or informal wills may be valid under s.11 Wills Act 1837).

Personal Representatives

the appointment of executors

Who Are Personal Representatives (PRs)? • PRs are the people legally responsible for administering the deceased’s estate. • Two types: • Executors – Appointed by the will. • Administrators – Appointed by the court when no valid will exists (intestacy or partial intestacy).

Appointment of Executors

A. Made in the Will • A testator appoints one or more executors in the will. • Can name: • A single executor • Multiple executors (up to 4 can act at once – Administration of Estates Act 1925, s.114) • Substitute executors, in case the first-named is unable/unwilling to act

B. Capacity to Act

To act as an executor, the person must: • Be 18 years or over • Have mental capacity • Not be disqualified (e.g. bankrupt for some duties)

Executors can also be beneficiaries of the will – this is allowed.

C. Executor’s Role Begins on Death • Appointment takes effect immediately upon death of the testator. • However, they need to obtain a Grant of Probate to exercise legal authority (except in small estates or with specific exceptions).

D. Renunciation or Refusal to Act • An appointed executor can: • Accept the role (intermeddling or applying for probate) • Renounce the role before taking any action (in writing) • Reserve power (allowing others to act, can apply later)

Executors should not begin administration unless they intend to continue – otherwise they are said to have intermeddled and must act fully.

E. If No Executor Appointed or Able to Act • The court will appoint an administrator with will annexed (i.e. where a will exists but no executor is available) under Rule 20 Non-Contentious Probate Rules 1987. • Priority is generally given to beneficiaries under the will.

renunciation and reservation of power

I. Overview

In cases where multiple executors are appointed by a will, not all may wish or be able to act immediately. The law allows for: • Renunciation – executor permanently steps down • Reservation of power – executor temporarily steps aside but may join later

II. Renunciation

A. Definition • Complete refusal to act as an executor. • Executor gives up the right to apply for the grant of probate forever.

B. Formalities • Must be done in writing, signed, and filed at the Probate Registry (under Non-Contentious Probate Rules 1987, r.7). • Renunciation must occur before any intermeddling (taking steps to administer the estate).

If an executor intermeddles, they cannot renounce and must act.

C. Effect • Renounced executor cannot later change their mind. • If needed, the court may reappoint them, but this is rare.

III. Reservation of Power

A. Definition • An executor chooses not to act initially, but reserves the right to act later. • Often used where: • One executor wants to act now • Others prefer to wait or are unavailable

B. Process • The executor does not join in the application for probate. • Their right to apply is preserved. • Probate is granted to the acting executor(s) “with power reserved” to the non-acting executor.

C. Later Involvement • A non-acting executor may later apply to be joined in the administration (known as “proving power reserved”).

This is flexible and often used to avoid unnecessary complications.

Alterations and amendments to wills

effect of alterations made to wills both before and after execution

The alteration is valid if it was made before execution.

use of codicils

Alterations and Amendments to Wills (English Law – SQE1)

1. Alterations Before Execution

• A testator (the person making the will) can alter their will before it is executed (i.e., before signing and witnessing).

• These changes do not require formalities if the will hasn’t yet been executed.

2. Alterations After Execution

• If changes are made after execution, strict rules apply.

• The alteration is only valid if:

• It complies with the formalities of a will under s.9 Wills Act 1837, or

• It is confirmed by a codicil (see below).

• Illegible or ambiguous alterations may result in the original wording being upheld instead.

3. Use of Codicils

• A codicil is a separate legal document that amends or adds to a will.

• It must:

• Be executed with the same formalities as a will (s.9 Wills Act 1837).

• Clearly refer to the original will (e.g., “This is a codicil to my will dated…”).

• Codicils can:

• Alter provisions (e.g., change an executor or a gift),

• Add new clauses,

• Confirm the will’s validity (even after marriage or changes in circumstances).

Revocation of wills

methods of revocation

Under s.20 of the Wills Act 1837, a will can be revoked (cancelled) in several specific ways:

1. Revocation by a Subsequent Will or Codicil

• A will is revoked expressly if a new will or codicil says something like: “I revoke all former wills.”

• It may also be revoked impliedly if a new will is inconsistent with the previous one (e.g., giving the same property to a different person).

Key Point for SQE1: A valid new will or codicil must comply with s.9 formalities (written, signed, witnessed).

2. Revocation by Marriage or Civil Partnership

• Under s.18 Wills Act 1837, marriage or civil partnership automatically revokes a will, unless:

• The will was made in contemplation of that marriage or partnership.

• “Contemplation” must be expressly stated in the will.

3. Revocation by Destruction

• A will is revoked if:

• It is physically destroyed (burned, torn, etc.)

• With the intention to revoke.

• Mere destruction without intention, or intention without destruction, is not sufficient.

Case example: Cheese v Lovejoy [1877] — intention alone wasn’t enough without proper destruction.

4. Revocation by Operation of Law (Partial Revocation)

• Divorce or annulment does not revoke the whole will, but:

• It revokes any gift to the former spouse and removes them as executor or trustee, under s.18A Wills Act 1837. • The rest of the will remains valid.

effect of marriage and divorce of a testator

1. Effect of Marriage

General Rule (s.18 Wills Act 1837):

Marriage automatically revokes a will made before the marriage.

Why? The law assumes the testator’s intentions may change upon marriage, so the old will is no longer valid.

EXCEPTION – “In Contemplation of Marriage”:

A will is not revoked if it was made:

• In contemplation of a specific marriage to a named person, and

• This intention is clearly stated in the will.

SQE Tip: Use phrasing like: “This will is made in contemplation of my upcoming marriage to [Name].”

Case Example:

• Re Coleman [1975] – will not saved where contemplation wasn’t specific enough.

2. Effect of Divorce or Annulment

🔹 General Rule (s.18A Wills Act 1837):

Divorce or annulment does not revoke the entire will, but:

It has the following effects:

• Any gift to the former spouse is treated as if they had died.

• Any appointment of the former spouse as executor, trustee, or guardian is also cancelled.

Exceptions:

• If the will expressly states the gift or appointment should survive divorce, then it remains valid.

• Judicial separation or informal breakup does not revoke or alter the will.

The interpretation of wills

effect of different types of gift

Understanding how gifts are classified in a will is essential for interpreting a testator’s intentions and determining what happens if circumstances change (e.g. the gift is no longer available, or the beneficiary dies).

1. Specific Gift

A gift of a particular item or identifiable property owned by the testator at the time of death.

Example: “I give my diamond ring to my daughter Emily.”

Effect if item no longer exists (doctrine of ademption): • The gift fails (adeems) if the specific item is not part of the estate at death. • No substitution is made — Emily gets nothing.

Ademption = extinction of the gift.

2. General Gift

A gift that is not linked to a specific asset, but can be satisfied from the general estate.

Example: “I give £5,000 to my nephew Sam.”

Effect: • It is paid out of the general estate funds, regardless of specific assets.

3. Demonstrative Gift

A hybrid between specific and general — a monetary gift with reference to a particular fund or asset.

Example: “I give £1,000 from my HSBC savings account to my friend Rachel.”

Effect: • If the fund exists: paid from that source. • If the fund is insufficient or doesn’t exist: the gift becomes general and is paid from the estate.

Still valid even if the account is closed — unlike a specific gift.

4. Pecuniary Gift

A gift of a fixed sum of money, usually a general gift.

Example: “I give £10,000 to my grandson Jake.”

Effect: Same as general gift — paid out of general assets unless otherwise specified.

5. Residual (Residuary) Gift

A gift of the remainder of the estate after all other gifts, debts, and expenses are paid.

Example: “I leave the rest of my estate to my wife.”

Effect:

• Often the most important gift.

• If a will has no valid residuary clause, partial intestacy may arise.

Interpretation Rules:

• Courts aim to honour the testator’s intention.

• Ambiguities in gift type may affect who receives what and whether a gift fails.

• If a gift fails, it may:

• Lapse (e.g. beneficiary predeceases testator),

• Adoom (specific item no longer exists),

• Or fall into the residue or intestacy.

failure of gifts

Sometimes, a gift in a will fails and does not pass to the intended beneficiary. This can happen for various legal reasons. Understanding these is essential for SQE1.

1. Lapse

A gift lapses (fails) if the beneficiary dies before the testator, unless an exception applies.

Effect: The gift falls into the residue, or if part of the residue, may cause partial intestacy.

Exception – s.33 Wills Act 1837:

• If the deceased beneficiary is a child or descendant of the testator, and they leave issue (children) alive at the testator’s death → the gift passes to the issue.

s.33 applies unless the will expresses a contrary intention.

2. Ademption

Applies to specific gifts only. If the testator no longer owns the specific item at death → the gift adeems (fails).

Effect: The beneficiary receives nothing.

Example: “I give my Rolex watch to Sam.” If the watch was sold before death → Sam gets nothing.

3. Abatement

Happens when the estate is insufficient to pay all debts and gifts. Gifts are reduced in a set order to cover debts.

Order of abatement:

1. Residuary gifts

2. General gifts (e.g., cash)

3. Demonstrative gifts

4. Specific gifts

Later gifts abate first unless will states otherwise.

4. Disclaimer

A beneficiary can refuse (disclaim) a gift.

Effect: The gift fails and falls into the residue or passes as per intestacy rules.

5. Uncertainty

If a gift is uncertain or vague, and the court cannot determine what was intended → it fails.

Example: “I give a reasonable portion of my money to my neighbour.” ← This may be too vague.

6. Illegality

If the gift involves something illegal or contrary to public policy, it fails.

Example: A condition that encourages crime or divorce.

7. Condition Not Fulfilled

Gifts that are conditional fail if the condition is not met.

Example: “If my son graduates law school, he shall inherit my flat.” If he doesn’t graduate → gift fails.

The intestacy rules

Section 46 of The Administration of Estates Act 1925

If there is a surviving spouse but no issue, the spouse is entitled to the entire estate.

If there is a surviving spouse and issue, the spouse takes: personal chattels, 270,000 and one of the residue absolutely.

If there is no surviving spouse:

1. Issue of the intestate on statutory trusts;
2. Parents (equally if both alive)
3. Brothers and sisters of the whole blood on statutory trusts;
4. Brothers and sisters of the half blood on statutory trusts;
5. Grandparents
6. Uncles and aunts of the whole blood on statutory trusts;
7. Uncles and aunts of the half blood on statutory trusts; and
8. The Crown as 'bona vacantia'.

the statutory trusts

Overview

A statutory trust arises when the estate passes to issue (children, grandchildren, etc.) or other relatives on trust, rather than as absolute gifts. This is especially relevant when beneficiaries are under 18 or when there is more than one class of beneficiary.

Key Features of a Statutory Trust:

1. Held on Trust Until Age 18 • Beneficiaries do not receive their inheritance immediately. • The estate is held on trust until the beneficiary reaches 18 years old (or marries before that age).

2. Equal Shares Per Stirpes • Where there is more than one child (or grandchild), the estate is divided equally. • If a child predeceases the intestate but leaves issue, their share passes to their issue by representation (per stirpes).

“Per stirpes” = down the family line.

3. Trustee Powers • Trustees hold the estate and have powers to: • Advance income or capital for the maintenance, education, or benefit of minors. • Invest the estate prudently under the Trustee Act 2000.

Example Scenario: • Intestate dies leaving 3 children: Alice (30), Ben (17), and Carla (deceased, with two children). • The estate is divided into 3 equal shares. • Alice takes her 1/3 outright. • Ben’s 1/3 is held on statutory trust until he’s 18. • Carla’s 1/3 goes to her children equally on trust if they are under 18.

Application to the Rules of Intestacy: • Statutory trusts apply where: • The estate goes to children, grandchildren, or siblings, • And they are minors or there’s more than one beneficiary in a class.

Probate and Administration Practice

Claims against estates under the Inheritance (Provision for Family and Dependants) Act 1975

Under English law, the Inheritance (Provision for Family and Dependants) Act 1975 (the "Act") allows certain individuals to make a claim against an estate if they believe that they have not been adequately provided for in the deceased's will or under the rules of intestacy.

Time limit

The time limit for making a claim against an estate under the Act is 6 months from the grant of probate or letters of administration. However, in some circumstances, the court may allow a claim to proceed outside of the 6-month time limit.

Applicants

The Act provides for a limited group of applicants who may make a claim against an estate, including:

1. Spouses or civil partners of the deceased
2. Former spouses or civil partners who have not remarried or entered into a new civil partnership
3. Children of the deceased, including adult children and children who were treated as the deceased's children (such as stepchildren)
4. Individuals who were maintained by the deceased prior to their death, such as a cohabiting partner or dependent relative
5. Any person who was being supported by the deceased (wholly or partly) immediately before the deceased's death

Grounds

In order to make a successful claim under the Act, the applicant must demonstrate that the deceased did not make "reasonable financial provision" for them in their will or under the rules of intestacy. What constitutes "reasonable financial provision" will depend on the specific circumstances of each case, but the court will consider factors such as the financial needs and resources of the applicant, the size and nature of the estate, and the needs of any other beneficiaries. It is worth noting that the Act does not give an absolute right to make a claim against an estate. The court has discretion to decide whether to grant an application and how much provision should be made.