Practice Notes on Wills

David Chatterton

• Publisher: Routledge-Cavendish
• Year: 2013
• eBook ISBN: 9781135338886
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

The fourth edition of this book follows the format of the previous editions, but has been comprehensively updated to take into account the most significant new cases and legislation, including the Trusts of Land and the Appointment of Trustees Act 1996 and the Trustee Delegation Act 1999. It also deals in depth with the Trustee Act 2000.

1 Basic Information

1.1 Introduction

This introductory chapter is intended to explain why a will is necessary and the reasons why you should advise a client to make a professionally prepared will rather than leave the devolution of his estate on death to the law of intestacy – the legal rules which the law imputes as being the intentions of a dead person where he has failed to make a will – setting out and clarifying his wishes as to the disposition of his property when he dies. It is important that the reasons and justification for a will are clearly and precisely explained to the client so that he appreciates fully the need for a will and does not begrudge the legal fees payable for preparing, drafting and executing a formal will. Above all, careful explanation must be given in layman’s terms of the financial benefits which may accrue to the beneficiaries under the will from a professionally drawn up document, for example, by tax planning and the mitigation of Inheritance Tax (see Chapter 4, ‘Advising the Client’) and the savings that may arise on death when the will has to be proved.

1.2 Giving effect to the testator’s wishes

(a) Advise the client that in his will he may clearly and precisely state how he wishes all his property (whether it be his house, car, bank accounts or stocks/shares) to pass on death and arrange, so far as the law will permit, for his relatives to receive his assets on his death, subject to the administration of his estate by his appointed personal representatives.

(b) Point out to the client that by the terms of his will he may nominate a person or persons (an executor/executors) to carry out his wishes and arrange for the distribution of his estate to his next of kin, friends and favourite charities according to the wishes he has laid down in his will.

(c) Advise the client that if he does not appoint an executor, an administrator will be nominated by law (by r 22(1) of the Non-Contentious Probate Rules 1987 SI 1987/2024) to carry out the distribution of the estate. If, however, the client appoints an executor, he will be the first person entitled to prove the will and administer the client’s estate (see r 20 of the Non-Contentious Probate Rules 1987).

By nominating an executor in his will, the client may appoint a person he trusts to carry out the distribution of his estate and, where appropriate, he should be advised to appoint businesslike or professional people (for example, solicitors or accountants) as executors because they will have the expertise to maximise the possible financial and fiscal advantages on the distribution of the estate. (As to the choice of executors and trustees, see Chapter 4, ‘Advising the Client’.)

• Advise the client that by the terms of his will he may express his wishes as to disposal of his body on his death and the possible use of parts of his body for transplant surgery.

The following should be noted:

(a) it has been suggested by some legal writers that it is preferable to leave directions in a separate letter addressed to a close relative, as, sometimes, the will is not opened or even discovered until after the funeral. If this is done, the solicitor should retain a copy of the letter with the completed draft will;

(b) it is possible, by writing to the DSS, Alexander Fleming House, Elephant and Castle, London SE1 6BY, to obtain a memorandum as to gifts of bodies for anatomical examination. By s 4 of the Anatomy Act 1984, a written request by a dead person is binding on the executors unless any relative objects;

(c) as to the use of the body for therapeutic purposes, reference should be made to the Human Tissue Act 1961 – this Act is, inter alia, the authority for removal of the eyes;

(d) the executors and deceased’s family are not legally bound by the deceased’s funeral and burial wishes, other than the requirement that they must give effect to a direction against cremation which is effective in law.

1.3 Preventing intestacy and possible family provision claims

(a) Make it clear to the client that if he does not make a will, his estate will devolve or pass according to the law of intestacy, which could mean that the persons who become entitled to the bulk of his estate may not be those whom he would wish to benefit on his death (for the rules as to the devolution of an estate on intestacy, refer to Chapter 2, ‘The Relevant Law’).

(b) Advise the client about the possible rights of claimants under the Inheritance (Provision for Family and Dependants) Act 1975 which gives rights to, inter alia, mistresses and divorced spouses (who have not remarried) to make a claim on a person’s estate on his death.

(c) Advise the client who fears a possible family provision claim under the above Act as to s 21, which enables a statement to be made, either oral or written, as to the reasons why the testator does not wish to make provision for a particular person. The statement may be embodied in the will or a contemporaneous written and signed statement may be placed with the will giving reasons why no provision is made for any person. Such a statement is admissible as evidence of the facts stated therein.

1.4 Special clauses

(a) Advise the client that provision may be made in a will for special purposes, for example, guardianship of minor children, or provisions permitting the deceased’s personal representatives to carry on the business if, for example, he was a sole trader (see Chapter 5, ‘Precedent Clauses’). Clauses are often inserted appointing guardians of minors on the death of a parent – a guardian may act jointly with a surviving parent (s 3 of the Guardianship of Minors Act 1971).

(b) In order to provide for the financial support and maintenance of minor children, the client’s instructions should be taken as to whether he wishes to insert in the will a clause extending or varying the powers of maintenance and advancement of capital (incorporated in ss 31 and 32 of the Trustee Act 1925) and he should be fully advised as to the effect of such clauses. These are usually fairly standard in professionally prepared wills; see Chapter 5 for a standard clause to be inserted in such circumstances.

(c) Advise the client as to the insertion of other special clauses, for example, extension of investment powers of trustees under the Trustee Investment Act 1961, or exclusion of certain costly income/interest apportionment rules, for example, Howe v Earl of Dartmouth (1802) 7 Ves 137 (for standard clauses to provide for these circumstances, see, also, Chapter 5).

1.5 Tax and estate planning

(a) Emphasise the tax-saving advantages which may accrue to the estate by careful use of a will as an estate planning instrument. It should be clearly explained to the client that a professionally drafted will can effect substantial Inheritance Tax savings for a deceased person’s relatives, so that they will receive an increased share of his estate and not be compelled to pay the potential full charge to tax (see Chapter 4).

(b) Advise the client that he may make lifetime gifts to his relatives and, if he survives them for a period of seven years from the date of the gift, no tax will be payable (see s 3A of the Inheritance Tax Act 1984, as added by the Finance Act 1986).

(c) Advise the client of the annual £3,000 exemption, small gift exemption, etc (see, generally, Inheritance Tax Act 1984 and 4.3) and such devices as equalisation of estates between spouses and the discretionary trust which can be used to mitigate Inheritance Tax liability.

1.6 Administrative expense-saving

The absence of a will effectively creates a vacuum and, therefore, when a person dies without making a will, substantial expense may be incurred in tracing whether a will has actually been made (see Chapter 8, ‘Answers to Common Questions’, where advice is given on how to ensure that any will made by the deceased is easily found). Extra expense may also be incurred in tracing relatives where no will is found.

Generally, it is easier and less costly to have a will than to be involved in proving and administering an estate where no will has been made. Not only is it, in fact, more costly to obtain a grant of letters of administration to an estate than a grant of probate in respect of a deceased’s will, but also, the trusts which may well arise under the intestacy rules as at present can be very costly in terms of administration expenses and, in practical terms, are unlikely to reflect the client’s true wishes regarding the devolution of his estate.

1.7 Role of the Probate Registrar

Applications for non-contentious grants of probate or letters of administration are made to the Principal Probate Registry, the District Probate Registry or Sub-District Registry (see Chapter 9 for the addresses of these registries). ‘Non-contentious business’ consists of probate and administration applications which do not lead to any form of litigation and are therefore non-contentious.

Each registry has a registrar who checks that all the papers leading to a grant are in order and that the will, if any, is valid and complies with the necessary legal rules as to formalities (see Chapter 2, ‘The Relevant Law’ for a discussion of the general principles of law applicable).

The registrar also applies the rules which regulate non-contentious business, that is, the Non-Contentious Probate Rules 1987 SI 1987/2024, which consolidated the Non-Contentious Probate Rules 1954 and came into force on 1 January 1988.

If solicitors are in doubt as to the drafting of probate/administration papers, the registrar will usually settle them for a small fee.

1.8 Relevant legislation

The main Acts concerned with the validity of wills are:

(a) Wills Act 1837;

(b) Wills (Soldiers and Sailors) Act 1918;

(c) Pt IV, ss 17–52 of the Administration of Justice Act 1982 (which amends the previous legislation).

The powers of executors, administrators and trustees are largely derived from:

(a) Administration of Estates Act 1925;

(b) Trustee Act 1925;

(c) Law of Property Act 1925;

(d) Trustee Investment Act 1961;

(e) Trusts of Land and Appointment of Trustees Act 1996;

(f) Trustee Delegation Act 1999;

(g) Trustee Act 2000 (see, for more details, Chapter 7).

The law on intestacy can be found in the Administration of Estates Act 1925 and the Intestates’ Estates Act 1952.

Family provision claims are dealt with under the Inheritance (Provision for Family) Act 1975. The Law Reform (Succession) Act 1995 has made the significant amendments referred to in the text.

The legislation on Inheritance Tax is chiefly to be found in the Inheritance Tax Act 1984 as amended by the Finance Acts, in particular, the Finance Act 1986.

For the rules of the Probate Registry, reference should be made to the Non-Contentious Probate Rules 1987 SI 1987/2024.

1.9 Living wills

Occasionally, ill and incapacitated people may be kept alive for long periods by medical treatment which, if they remained competent to decide, they might refuse, thereby facilitating death from natural causes.

Individuals can anticipate this situation by expressing wishes in advance (by ‘advance directives’ known as ‘living wills’) or delegating the right to make the decisions to someone else on their behalf.

There are, however, at present, no procedures whereby a person can delegate to another the power to consent to or refuse medical treatment.

‘Living wills’ (which are quite distinct from the wills discussed throughout this book), as they do not dispose of property, are means by which a person can request that certain treatment should, or should not, be given in certain circumstances if the individual is not himself competent to consent to or refuse medical treatment. There is no presumption of consent.

Recent cases, such as Airedale NHS Trust v Bland [1993] 2 WLR 316, HL, suggest that such advance directives may have legal effect.

Precedents of ‘living wills’ are available, inter alia, from the Voluntary Euthanasia Society (13 Princess of Wales Terrace, London W8 5PG) and the Terrence Higgins Trust (52–54 Grays Inn Road, London WC1X 8JW). Precedents of the suggested ‘living wills’ of both organisations are reproduced with their consent in Chapter 6 (6.6 and 6.7) and their telephone numbers are included in Chapter 9 (‘Useful Addresses’).

The Scottish decision of Law Hospital Trust v Johnstone (1996) by Lord Cameron of Lochbroon is an interesting one in which an order was made discontinuing treatment of a patient who had been in a persistent vegetative condition for some four years. The case, being Scottish, is only of persuasive authority in English law, but may have far reaching implications.

2 The Relevant Law

2.1 Introduction

The intention of this book is to emphasise the more significant points of the law relating to the subject rather than to give an exhaustive discussion of the law relating to the making and revocation of wills, intestacy and family provision.

There are a great many learned works on the law of succession ranging from such tomes as Theobald and Clark, The Law of Wills, Sweet & Maxwell, and Jarman on Wills, Sweet & Maxwell, through to the standard student text books such as Parry and Clark, The Law of Succession, Sweet & Maxwell. For a more thorough treatment of the subject, the reader is respectfully referred to these and other works as listed in Chapter 10, ‘Further Reading’.

2.2 Definition and nature of a will

A will has been defined as ‘the expression by a person of wishes which he intends to take effect only at his death’ (Parry and Clark, The Law of Succession, p 1).

To make a valid will, a person must incorporate in a legally valid document his intentions as to the disposition of his property on death.

A will is ambulatory, that is, it does not take effect until the testator actually dies. In addition, it is effective to dispose of not only the property the testator owns at the date he makes the will, but also all property which he acquires at any time between the date of his will and his actual death (s 24 of the Wills Act 1837).

A will must be revocable at any time prior to the testator’s death.

A will can effectively dispose of all the testator’s property of any kind whether real or personal, vested, contingent or in remainder.

In the decision in Re Berger [1989] 2 WLR 147, the Court of Appeal held:...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgments
• 1 Basic Information
• 2 The Relevant Law
• 3 Taking the Client's Instructions
• 4 Advising the Client
• 5 Precedent Clauses
• 6 Example Precedents
• 7 The Trustee Act 2000
• 8 Answers to Common Questions
• 9 Useful Addresses
• 10 Further Reading