Practitioner's Guide to Wills

Lesley King is a professor at the University of Law and writes and lectures extensively on wills, taxation and related matters. Her books include A Modern Approach to Lifetime Tax Planning for Private Clients; Varying the Disposition of an Estate after Death; and Wills: A Practical Guide (WSH). Peter Gausden is a solicitor and was formerly a principal lecturer at the College (now University) of Law. He now acts as a private client consultant at Rowlinsons and is a current contributor to Tolley’s Administration of EstatesKeith Biggs is a former District Probate Registrar who now acts as a probate consultant. He is co-author of A Practitioner’s Guide to Probate and the Administration of Estates (WSH). Meryl Thomas has worked in practice and is currently Professor of Law at the Institute of Law in Jersey. She has worked at several universities and institutions around the world

• PrefaceTable of PrecedentsTable of CasesTable of StatutesTable of Statutory InstrumentsTable of Conventions1INTRODUCTION2THE NATURE OF A WILL2.1Definition2.2A will distinguished from other concepts2.3Contracts to make a will2.4Joint and mutual wills2.5Property which can validly be disposed of by will3TESTAMENTARY CAPACITY3.1Changes in capacity3.2Minors3.3Persons who lack capacity3.4Intention3.5Knowledge and approval3.6Mistake3.7Force, fear, fraud or undue influence4FORMAL REQUIREMENTS FOR THE CREATION OF A WILL4.1General4.2Writing4.3Signature4.4Attestation4.5Capacity of witnesses4.6Privileged wills4.7Incorporation of unattested documents5BENEFICIARIES5.1General5.2Gift to a beneficiary who predeceases the testator5.3Unlawful killing5.4Gifts for the upkeep and maintenance of graves5.5Gifts for animals5.6Gifts to societies and clubs5.7Gifts to charities6BENEFICIARIES IDENTIFIED BY DESCRIPTION OR RELATIONSHIP6.1Introduction6.2Relationship by blood and affinity6.3Gender-specific drafting6.4Illegitimacy and adoption6.5Children6.6Descendants6.7Step-children6.8Issue6.9Survivors6.10Spouses and civil partners6.11Next of kin6.12Heir6.13Holders of an office6.14Precatory words6.15Secret trusts7REVOCATION AND ALTERATION7.1Revocation7.2Divorce and revocation7.3Revocation by a privileged testator7.4Conditional revocation7.5Alteration8CODICILS, REVIVAL AND REPUBLICATION8.1Codicils8.2Revival8.3Republication or confirmation9EXECUTORS AND TRUSTEES9.1Appointment of executors9.2Who can be an executor?9.3Renunciation9.4Appointment of trustees9.5Guardians10THE DISPOSAL OF THE BODY10.1Directions as to disposal10.2Anatomical research and organ transplantation11FOREIGN PROPERTY OR DOMICILE11.1General11.2The concept of domicile11.3Movables11.4Immovables11.5Powers of appointment exercised by will11.6EU Regulation 650/201212LEGACIES12.1Specific Legacies12.2General Legacies12.3Demonstrative legacies12.4Gifts to a debtor12.5Gifts to an executor12.6Gifts to employees12.7Gifts of undivided shares of personalty13GIFTS OF BUSINESSES13.1Business property relief13.2Succession planning14GIFTS OF LAND14.1General14.2Gifts to minors14.3Directions as to inheritance tax14.4Impact of the residence nil rate band14.5Gifts of undivided shares and clauses dealing with joint property14.6Right to occupy a personal residence14.7Gifts of testamentary options14.8Gifts of leaseholds15CONDITIONS ATTACHED TO GIFTS15.1Conditions precedent and subsequent15.2General15.3Effect of invalidity15.4Determinable Interests16PILOT TRUSTS16.1Background16.2Traditional pilot trust planning before the 2015 changes16.3The new rules introduced by the Finance (No 2) Act 201516.4Additional points on the new rules16.5Is there any place for future pilot trusts planning?16.6Non-related settlements17GIFTS OF RESIDUE17.1General17.2The necessity for a trust17.3Trust for sale or power to sell17.4Different persons as executors and trustees17.5Trusts of fractional shares of residue17.6Providing for spouses and civil partners17.7Burden of inheritance tax17.8Survivorship clauses17.9Substitutional gifts18POWERS AND DISCRETIONARY TRUSTS18.1Nature and classification of powers18.2Wills Act 1837, section 2718.3Perpetuities and Accumulations Act 200918.4Delegation of powers18.5Consent to exercise power18.6Release of powers18.7Fraudulent appointments18.8Discretionary trusts18.9Nil rate band discretionary trusts18.10Trusts for the disabled18.11 Protective trusts19INCOME AND INTEREST19.1Immediate specific gifts and devises19.2Contingent or deferred specific gifts19.3General and demonstrative gifts19.4Residuary gifts20ABATEMENT, ADEMPTION, ELECTION, SATISFACTION AND CONVERSION20.1Abatement20.2Refunds20.3Ademption20.4Options to purchase and ademption20.5Republication and ademption20.6Election20.7Satisfaction20.8Conversion21TESTAMENTARY OPTIONS TO PURCHASE21.1Introduction21.2Terms22ADMINISTRATIVE PROVISIONS22.1Introduction22.2Appropriation of assets22.3Power to act though personally interested and to purchase trust property (‘self-dealing’)22.4Retention of directors’ remuneration22.5Power to act by majority22.6Power to employ agents22.7Appointment of new trustees22.8Power to act on counsel’s opinion22.9Indemnity clauses22.10Charging clauses22.11Power to invest22.12‘Anti-Bartlett’ clauses22.13Power to acquire land22.14Powers to manage land22.15Insurance22.16Debts22.17Power to carry on a business22.18Power to borrow22.19Powers in relation to particular beneficiaries22.20Power to advance capital23PERPETUITIES AND ACCUMULATION23.1The general perpetuity rule23.2The rule against vesting outside the perpetuity period23.3The rule against perpetual trusts23.4The rule against accumulations24CONSTRUCTION24.1General principles24.2The modern approach to construction24.3Presumptions24.4Admissibility of extrinsic evidence24.5Rectification24.6Date from which a will ‘speaks’24.7The falsa demonstratio doctrine24.8Construing the same words in different parts of the same will24.9Meaning of particular words of description24.10Per capita and per stirpes distribution24.11Children born as a result of fertilisation techniques24.12Surrogacy arrangements24.13Class gifts24.14Absolute interests made subject to restrictions24.15Gifts to legatees and their children24.16Gifts to legatees and their issue24.17Gifts to benefit legatees24.18Gifts over24.19Contingencies relating to gifts over on death24.20Divesting24.21Failure of issue25FAILURE OF GIFTS AND INTESTACY25.1Uncertainty25.2Disclaimer25.3Forfeiture on contesting a will25.4The effect of failure25.5Acceleration of a subsequent interest25.6Intestacy25.7Accruer clauses26FAMILY PROVISION26.1Introduction26.2Time limit for applications26.3Those who can apply26.4Reasonable financial provision26.5The guidelines26.6Property available for financial provision26.7Orders which the court may make26.8Interim payments26.9Anti-avoidance26.10Tax implications26.11Minimising the chances of a successful claim27INHERITANCE TAX27.1The charge to tax27.2Transfers of value27.3Value transferred27.4Transfers which are not transfers of value27.5Chargeable transfers27.6Excluded property27.7Exemptions and reliefs27.8The transferable nil rate band27.9The residence nil rate band27.10Reservation of benefit27.11The reduced rate for charitable giving27.12General tax planning27.13Post-death variations28CAPITAL GAINS TAX28.1Introduction28.2Rates of tax28.3Disposal of assets28.4Effect of death28.5Exemptions and reliefs28.6Accelerated payment of tax28.7Rearranging succession provisions after death28.8Basic tax planning29SETTLEMENTS29.1Liability to inheritance tax29.2Liability to capital gains tax29.3Inheritance Tax Act 1984, section 144: appointments from trusts within 2 years of death29.4The need to register settlements30TAX-EFFICIENT WILL PLANNING30.1Introduction30.2Estate planning options30.3Problems with using the residence nil rate bandAPPENDICESA1COMPLETE WILLS AND MISCELLANEOUS PRECEDENTSA1AStandard will: full form (long)A1BMutual willsA1CWill disposing of a businessA1DWill of widow(er) exercising power of appointment given by will of pre-deceased spouse or civil partnerA1EWill giving nil rate band legacy to discretionary trustA1FSimple will giving all property to another of full age absolutelyA1GCodicil made on separation from spouse or civil partner prior to divorce or annulmentA1HWill providing for discretionary trust of income during perpetuity period with division of capital at the end of period between surviving beneficiariesA1ILetter of wishes to trusteesA1JDeed of variation to sever beneficial joint tenancy and create nil rate band legacyA1KDeed of variation of a willA2NIL RATE BAND DISCRETIONARY TRUSTS WITH DEBT/CHARGE PROVISIONSA2AExplanatory noteA2BAdditional clauses for a will containing a nil rate band discretionary trust which is to include debt/ charge provisionsA2CDebt scheme: draft letter from the executors to the trustees of the legacy fund (when a charge is being imposed by the executors)A2DDebt scheme: securing the debtA3TEMPORARY CHANGES TO WILLS ACT 1837, SECTION 9 TO ALLOW REMOTE WITNESSINGA3.1The position in April 2020 at the beginning of the COVID-19 lockdownA3.2The amending legislationA3.3The procedure for remote witnessingA3.4Possible attestation clause where both witnesses are witnessing remotelyA3.5ProblemsIndex