Acing the SQE/Wills

Wills and Intestacy

Validity of wills and codicils

Wills Act 1837, s 9

No will shall be valid unless:

(a) it is in writing, and signed by the testator or by some other person in his presence and by his direction; and

(b) it appears that the testator by his signature intended to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either –

(i) attests and signs the will; or

(ii) acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

testamentary capacity

It refers to the legal requirement that a person must meet certain criteria in order to make a valid will.

1. Understand the nature of making a will: This means that the person must understand that they are making a legally binding document that will determine the distribution of their property after their death.
2. Know the extent of their property: The person must have a general understanding of the type and value of their property.
3. Understand who the natural objects of their bounty are: This means that the person must be aware of those who might reasonably expect to benefit from their estate, such as their spouse, children, or other close relatives.
4. Not be under any undue influence: The person must not be under any pressure or coercion from others to make a will in a particular way.

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

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.

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'.

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.