Wills & The Administration of Estates
1: Validity of Wills and Codicils
When a person dies, the first question should be: do any assets pass outside the will? Then, the solicitor
should consider whether the deceased left a will and, if so, whether it is valid. If there is no will, or it does
not dispose of all the deceased property, apply the intestacy rules.
The solicitor will deal with the deceased’s assets in the following order:
1. Property passing outside the will
2. Property passing under the will
3. [If necessary] any property not disposed of in (a) and (b) passing on intestacy
Property that passes OUTSIDE of the will and intestacy rules
Joint property: on the death of one beneficial joint tenant, their interest passes by survivorship to the
surviving joint tenant(s). The doctrine of survivorship does not apply to land held as tenants in common.
Life insurance policies: taken out for the benefit of a named individual. When the testator dies, the policy
matures and the insurance company will pay the proceeds to the named beneficiaries (regardless of the
terms of any will).
Pension scheme benefits: pension benefits paid by the trustee of the pension fund to members of the
deceased’s family. Such pension benefits do not belong to the employee during their lifetime and pass on
death independently of the terms of any will and of the intestacy rules.
Trust property: many equitable interests under a trust come to an end on the beneficiary’s death (e.g. life
interests). Here, trust property will devolve according to the terms of the trust, not the deceased’s will.
The requirements for a valid will
1. Capacity
2. Intention
3. Correct formalities of execution (s 9 Wills Act 1837)
,Capacity
Capacity = 18 or over + mental capacity.
Mental capacity: ‘soundness of mind, memory and understanding’
Testators must understand:
1. The nature of their act and its broad effects
2. The extent of their property
3. The moral claims they ought to consider
A testator must have capacity at the time they execute their will.
Exception: a will is valid if the testator had capacity at the time they gave their instructions for the
will even if they lose capacity before it is executed.
Presumption of capacity: applies if the will is rational on the face of it and the testator showed no
evidence of mental confusion before making the will.
If mental state is in doubt: the solicitor should ask a medical practitioner to provide a written report
confirming that the testator has testamentary capacity and also ask the doctor to witness the will. The
solicitor should record their own view of the testator’s capacity in a file note. The written evidence should
be kept on the file in case someone challenges the validity of the will.
Burden of proof: because of the presumption of capacity, the burden of proof shifts to a challenger
seeking to prove lack of capacity.
Intention
Intention = general + specific intention.
General intention: the testator must intend to make a will (as opposed to any other document).
Specific intention: the testator must intend to make the particular will now being executed (must know
and approve of its contents).
A testator must have intention at the time they execute their will.
Exception: if they had intention to make a will at the time they gave their instructions to the
solicitor drafting it.
Presumption of knowledge and approval: so it is not usually necessary to prove intention.
Exceptions:
Blind or illiterate testator
If another person signed it and not the testator personally
Suspicious circumstances (e.g. will prepared by a major beneficiary)
o Force or fear (through actual or threatened injury)
o Fraud
o Undue influence (this means coercion or duress. NOT persuasion stopping short of coercion,
so hard to prove. Being ‘overcome by intolerable pressure’ – a very high bar).
Burden of proof: because of the presumption of knowledge and approval, the burden of proof in on a
challenger seeking to prove duress/undue influence/fraud.
,Formalities of execution
For a will to be valid, it must comply with Section 9 Wills Act 1837:
a) In writing
b) Signed by the testator or by some other person in his presence and by his direction
c) The signature must be witnessed (by two witnesses in the testator’s presence)
In writing
Handwritten or typed.
Signed and intended to give effect to the will by the signature
Any signature so long as the testator intends it to represent their name (‘Your loving mother’,
crosses and thumbprints)
Another person may sign so long as they are given positive and discernible direction (verbal or non-
verbal) by the testator.
Witnessed
First, the testator’s signature must be made or acknowledged in the presence of two witnesses.
Both witnesses must be present at the same time.
Then the two witnesses must sign the will in the presence of the testator (but not necessarily in the
presence of each other).
Acknowledging signatures is an alternative. This means that the person confirms that the signature
is theirs.
There are no formal requirements relating to the capacity of witnesses, although they must be
capable of understanding the significance of being the witness to a signature.
Beneficiaries and partners of beneficiaries should not be witnesses: the will remains valid but the
gift to the witness or to the witness’s spouse or civil partner fails.
Privileged wills: wills made on actual military service or by a mariner at sea may be in any form, including a
mere oral statement. Only requirement is that they intend to dispose of his property after death.
The presumption of due execution: arises if there is an attestation clause = a clause which recites that the
s 9 formalities were observed (e.g. “signed by the testator in our joint presence and then by us in hers”).
If the will does not contain an attestation clause, HMCTS will require an affidavit of due execution
(or witness statement verified by a statement of truth) from a witness or any other person who was
present during the execution, or, failing that, an affidavit of handwriting evidence to identify the
testator’s signature, or they will refer the case to a judge (all of which involve time and expense).
, The Intestacy Rules
Intestacy rules: the statutory distribution of a person’s estate when they die without leaving a valid will.
Total intestacy: when all the property passes under intestacy rules, either because there is no will, will has
been revoked, invalid will, valid will that fails to dispose of any of the deceased’s estate.
Partial intestacy: valid will, but it fails to dispose of the entirety of the estate (intestacy rules only apply to
that part of the estate not disposed of).
The intestacy rules apply to every intestacy and are mandatory. It is not possible to make any kind of
provision or declaration to exclude specific people from inheriting under the rules.
The intestacy rules apply only to property which is capable of being left by will.
I.e. property which would pass outside of the will (x4) also passes outside of intestacy rules.
The statutory trust: whenever a person dies intestate, a trust is imposed over all the property. That
property is held on trust by the person(s) dealing with the estate. The PRs must pay all funeral,
testamentary and admin expenses. The balance remaining is the ‘residuary estate’ to be distributed
according to the rules set out in s 46 Administration of Estates Act.
Intestacy rules where there is a surviving spouse or civil partner AND issue
Spouse = legally married at the time of the deceased’s death (quality of relationship is irrelevant)
Spouse or civil partner must survive the intestate for 28 days in order to inherit.
Former spouses are excluded, but only from the point when the divorce is actually finalised.
An unmarried cohabitant has no entitlement under the intestacy rules.
Issue = all direct descendants of the deceased: children, grandchildren, great grandchildren, adopted
children etc
NOT Step children unless they are adopted legally.
28 day rule does not apply to issue inheriting.
Entitlement
Spouse receives Issues receive
Personal chattels (tangible movable property, not The other half of the residuary
money, investments, or property used for business) estate (on ‘the statutory trusts’)
Statutory legacy free of inheritance tax and costs plus
interest from death until payment (currently
£322,000). THIS IS PAID OUT OF THE RESIDUE
Half of the rest of the residuary estate
(note if the residuary estate is worth less than £322,000, the
spouse/civil partner receives everything and the issue
receives nothing).
‘On the statutory trusts’ = means that members of the specified class categories take the estate equally
(children under 18 have a contingent interest), and that issue of a deceased relative may take that
relative’s share.
1: Validity of Wills and Codicils
When a person dies, the first question should be: do any assets pass outside the will? Then, the solicitor
should consider whether the deceased left a will and, if so, whether it is valid. If there is no will, or it does
not dispose of all the deceased property, apply the intestacy rules.
The solicitor will deal with the deceased’s assets in the following order:
1. Property passing outside the will
2. Property passing under the will
3. [If necessary] any property not disposed of in (a) and (b) passing on intestacy
Property that passes OUTSIDE of the will and intestacy rules
Joint property: on the death of one beneficial joint tenant, their interest passes by survivorship to the
surviving joint tenant(s). The doctrine of survivorship does not apply to land held as tenants in common.
Life insurance policies: taken out for the benefit of a named individual. When the testator dies, the policy
matures and the insurance company will pay the proceeds to the named beneficiaries (regardless of the
terms of any will).
Pension scheme benefits: pension benefits paid by the trustee of the pension fund to members of the
deceased’s family. Such pension benefits do not belong to the employee during their lifetime and pass on
death independently of the terms of any will and of the intestacy rules.
Trust property: many equitable interests under a trust come to an end on the beneficiary’s death (e.g. life
interests). Here, trust property will devolve according to the terms of the trust, not the deceased’s will.
The requirements for a valid will
1. Capacity
2. Intention
3. Correct formalities of execution (s 9 Wills Act 1837)
,Capacity
Capacity = 18 or over + mental capacity.
Mental capacity: ‘soundness of mind, memory and understanding’
Testators must understand:
1. The nature of their act and its broad effects
2. The extent of their property
3. The moral claims they ought to consider
A testator must have capacity at the time they execute their will.
Exception: a will is valid if the testator had capacity at the time they gave their instructions for the
will even if they lose capacity before it is executed.
Presumption of capacity: applies if the will is rational on the face of it and the testator showed no
evidence of mental confusion before making the will.
If mental state is in doubt: the solicitor should ask a medical practitioner to provide a written report
confirming that the testator has testamentary capacity and also ask the doctor to witness the will. The
solicitor should record their own view of the testator’s capacity in a file note. The written evidence should
be kept on the file in case someone challenges the validity of the will.
Burden of proof: because of the presumption of capacity, the burden of proof shifts to a challenger
seeking to prove lack of capacity.
Intention
Intention = general + specific intention.
General intention: the testator must intend to make a will (as opposed to any other document).
Specific intention: the testator must intend to make the particular will now being executed (must know
and approve of its contents).
A testator must have intention at the time they execute their will.
Exception: if they had intention to make a will at the time they gave their instructions to the
solicitor drafting it.
Presumption of knowledge and approval: so it is not usually necessary to prove intention.
Exceptions:
Blind or illiterate testator
If another person signed it and not the testator personally
Suspicious circumstances (e.g. will prepared by a major beneficiary)
o Force or fear (through actual or threatened injury)
o Fraud
o Undue influence (this means coercion or duress. NOT persuasion stopping short of coercion,
so hard to prove. Being ‘overcome by intolerable pressure’ – a very high bar).
Burden of proof: because of the presumption of knowledge and approval, the burden of proof in on a
challenger seeking to prove duress/undue influence/fraud.
,Formalities of execution
For a will to be valid, it must comply with Section 9 Wills Act 1837:
a) In writing
b) Signed by the testator or by some other person in his presence and by his direction
c) The signature must be witnessed (by two witnesses in the testator’s presence)
In writing
Handwritten or typed.
Signed and intended to give effect to the will by the signature
Any signature so long as the testator intends it to represent their name (‘Your loving mother’,
crosses and thumbprints)
Another person may sign so long as they are given positive and discernible direction (verbal or non-
verbal) by the testator.
Witnessed
First, the testator’s signature must be made or acknowledged in the presence of two witnesses.
Both witnesses must be present at the same time.
Then the two witnesses must sign the will in the presence of the testator (but not necessarily in the
presence of each other).
Acknowledging signatures is an alternative. This means that the person confirms that the signature
is theirs.
There are no formal requirements relating to the capacity of witnesses, although they must be
capable of understanding the significance of being the witness to a signature.
Beneficiaries and partners of beneficiaries should not be witnesses: the will remains valid but the
gift to the witness or to the witness’s spouse or civil partner fails.
Privileged wills: wills made on actual military service or by a mariner at sea may be in any form, including a
mere oral statement. Only requirement is that they intend to dispose of his property after death.
The presumption of due execution: arises if there is an attestation clause = a clause which recites that the
s 9 formalities were observed (e.g. “signed by the testator in our joint presence and then by us in hers”).
If the will does not contain an attestation clause, HMCTS will require an affidavit of due execution
(or witness statement verified by a statement of truth) from a witness or any other person who was
present during the execution, or, failing that, an affidavit of handwriting evidence to identify the
testator’s signature, or they will refer the case to a judge (all of which involve time and expense).
, The Intestacy Rules
Intestacy rules: the statutory distribution of a person’s estate when they die without leaving a valid will.
Total intestacy: when all the property passes under intestacy rules, either because there is no will, will has
been revoked, invalid will, valid will that fails to dispose of any of the deceased’s estate.
Partial intestacy: valid will, but it fails to dispose of the entirety of the estate (intestacy rules only apply to
that part of the estate not disposed of).
The intestacy rules apply to every intestacy and are mandatory. It is not possible to make any kind of
provision or declaration to exclude specific people from inheriting under the rules.
The intestacy rules apply only to property which is capable of being left by will.
I.e. property which would pass outside of the will (x4) also passes outside of intestacy rules.
The statutory trust: whenever a person dies intestate, a trust is imposed over all the property. That
property is held on trust by the person(s) dealing with the estate. The PRs must pay all funeral,
testamentary and admin expenses. The balance remaining is the ‘residuary estate’ to be distributed
according to the rules set out in s 46 Administration of Estates Act.
Intestacy rules where there is a surviving spouse or civil partner AND issue
Spouse = legally married at the time of the deceased’s death (quality of relationship is irrelevant)
Spouse or civil partner must survive the intestate for 28 days in order to inherit.
Former spouses are excluded, but only from the point when the divorce is actually finalised.
An unmarried cohabitant has no entitlement under the intestacy rules.
Issue = all direct descendants of the deceased: children, grandchildren, great grandchildren, adopted
children etc
NOT Step children unless they are adopted legally.
28 day rule does not apply to issue inheriting.
Entitlement
Spouse receives Issues receive
Personal chattels (tangible movable property, not The other half of the residuary
money, investments, or property used for business) estate (on ‘the statutory trusts’)
Statutory legacy free of inheritance tax and costs plus
interest from death until payment (currently
£322,000). THIS IS PAID OUT OF THE RESIDUE
Half of the rest of the residuary estate
(note if the residuary estate is worth less than £322,000, the
spouse/civil partner receives everything and the issue
receives nothing).
‘On the statutory trusts’ = means that members of the specified class categories take the estate equally
(children under 18 have a contingent interest), and that issue of a deceased relative may take that
relative’s share.
