Wills: A Practical Guide

• Preface1 WILLS AND OTHER DEATH DISPOSITIONS1.1 Why make a will?1.2 What wills can give away1.3 What wills cannot give away1.4 Intestacy2 RESTRICTIONS ON TESTAMENTARY FREEDOM2.1 Introduction2.2 Inheritance (Provision for Family and Dependants) Act 19752.3 Mutual wills2.4 Contract to leave property by will2.5 Proprietary estoppel3 TESTAMENTARY CAPACITY AND INTENTION3.1 Introduction3.2 Testator’s age and physical capacity3.3 Testator’s mental capacity3.4 Testator’s intention3.5 Practical issues for the practitioner preparing the will4 REQUIREMENTS FOR VALID EXECUTION4.1 Introduction4.2 A simple recipe for getting it right4.3 Formalities in section 9 of the Wills Act 18374.4 Practicalities of execution4.5 Codicils4.6 Wills made outside England and Wales and section in 1 of the Wills Act 19634.7Wills not subject to section 9 of the Wills Act 1837 5 REVOCATION OF WILLS5.1 Freedom to revoke wills5.2 Methods of revocation5.3 Revocation by a later will or codicil5.4 Revocation by destruction5.5 Revocation by subsequent marriage or formation of a civil partnership5.6 Effect of divorce and dissolution5.7 Conditional revocation5.8 Revocation and privileged wills6 ALTERATION TO WILLS AND USE OF CODICILS6.1 Alterations made before execution6.2 Alterations made after execution6.3 Use of codicils7 CONSTRUCTION AND INTERPRETATION OF WILLS7.1 Introduction7.2 General principles of construction7.3 Applying basic rules of construction7.4 Using extrinsic evidence as an aid to construction7.5 From which date does a will speak?7.6 Omitting, changing and supplying words7.7 Class gifts and the class closing rules7.8 Defining children and other relatives8 WHY GIFTS IN WILLS MIGHT FAIL8.1 Reasons for failure8.2 Disclaimer8.3 Ademption8.4 Lapse8.5 Forfeiture8.6 Beneficiary witnesses will8.7 Uncertainty8.8 Contrary to public policy8.9 Gift induced by force, fear or undue influence8.10 Doctrine of satisfaction8.11 Abatement9 WILLS DEALING WITH PROPERTY ABROAD9.1 Problems caused by owning foreign property9.2 Forced heirship9.3 Community of property9.4 The EU Succession Regulation9.5 How many wills?9.6 Helping clients to deal with local lawyers10 LOCATING AND STORING WILLS10.1 Storing wills10.2 Locating lost wills10.3 Obtaining probate in absence of the original will11 APPOINTMENT OF EXECUTORS AND TRUSTEES11.1 Why appoint executors?11.2 Executors distinguished from administrators11.3 Drafting the executor’s appointment11.4 Who can be appointed?11.5 Remuneration of executors11.6 How many executors?11.7 Executors as trustees11.8 Limited and special appointments11.9 Conditional, substitute and alternative appointments11.10 Failure of appointment – divorce/annulment, renunciation and uncertainty11.11 Protecting executors and trustees11.12 Some other issues relating to executors12 APPOINTMENT OF TESTAMENTARY GUARDIANS12.1 Introduction12.2 Who can appoint a testamentary guardian?12.3 Requirements for a valid appointment12.4 When does an appointment take effect?12.5 Consequences for the guardian12.6 Funding for guardians and trust funds13 LEGACIES13.1 A word on terminology13.2 Types of non-residuary legacy13.3 Methods of making gifts13.4 Particular recipients13.5 Subject matter of legacies13.6 Relieving provisions and other qualifications attached to gifts14 DEALING WITH THE HOME AND LAND14.1 Initial considerations before advising the testator14.2 Points relevant to all testamentary gifts of land14.3 Choices for the testator15 RESIDUARY GIFTS INCLUDING RESIDUARY TRUSTS15.1 Need for an effective gift of residue15.2 Value of residue uncertain15.3 Calls on residue15.4 Is a trust of residue always necessary?15.5 Residuary provision16 IMPORTANCE OF INHERITANCE TAX16.1 Importance of inheritance tax16.2 Death estate16.3 Exemptions and reliefs16.4 The rate of tax16.5 Transferable nil rate band16.6 Residence nil rate band17 PLANNING A TAX-EFFICIENT WILL17.1 Introduction17.2 Using trusts17.3 Making best use of the residence nil rate band18 POWERS TO DEAL WITH INCOME AND CAPITAL18.1 Power to apply income – section 31 of the Trustee Act 192518.2 Power to advance capital – section 32 of the Trustee Act 192519 ADMINISTRATIVE POWERS FOR PERSONAL REPRESENTATIVES AND TRUSTEES19.1 Introduction19.2 STEP standard provisions19.3 Legacies to minors19.4 Power to invest19.5 Power to acquire land19.6 Power to act though personally interested and to buy trust property (‘self-dealing’)19.7 Appropriation of assets19.8 Power to charge19.9 Retention of directors’ remuneration19.10 Power to employ agents19.11 Appointment of new trustees19.12 Power to act on counsel’s opinion19.13 Indemnity clauses19.14 Insurance19.15 Power to carry on a business19.16 Power to borrow19.17 Exclusion of the apportionment rules19.18 Trusts of Land and Appointment of Trustees Act 199620 FUNERAL AND OTHER REQUESTS20.1 Funeral arrangements20.2 Donation of the body and body parts21 PRACTICAL ISSUES WHEN TAKING INSTRUCTIONS AND AT EXECUTION21.1 Preliminary matters21.2 Terms of the will21.3 Executing wills22 TIPS ON AVOIDING DRAFITING PITFALLS22.1 Failing to make provision for an event22.2 Internal inconsistencies22.3 Ignorance of a legal ruleAPPENDICES1 A Family Will2 Intestacy Rules3 Planning a Tax-efficient Will – Case StudiesIndex

' …an easy to use introduction for someone new to will writing or a useful reminder for the more experienced practitioner.' From a review in Law Society Gazette.