WILLS AND ADMINISTRATION vol 42

WILLS AND ADMINISTRATION vol 42(1) will precedents

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About this title—authors, overview

Commentary

1 Scope of title

2 Meaning of ‘will’ and ‘codicil’

3 Interpretation of wills: general rules as to evidence

4 Rectification

5.1 Purpose

5.2 Ambulatory in nature

6 Conditional wills

7 Mutual wills

8 Joint wills

9 Incorporation by reference

10 Nominations

11.1 General points on secret trusts

11.2 Fully-secret trusts

11.3 Half-secret trusts

12 Precatory trusts

13 Persons of full age and sound mind

15 Meaning of ‘sound disposing mind’

16 Need for knowledge and approval

17 Execution of will by person who lacks capacity within meaning of Mental Capacity Act 2005

18 Immovables and movables

19 Property passing under will

20 Digital assets

21 Examples of property which may be disposed of

22 State of testator’s title

23 Co-owners

24 Property not belonging to the testator

25 Equitable doctrine of election

26 Choses in action which are not disposable

27 Testator’s body

28 General points on donees under wills

29 Gifts to trustees of an existing trust

30 Gifts to non-charitable bodies

31 Necessity for donee to be ascertained within perpetuity period

32 Grounds which may cause gift to fail

33 Undue influence and fraud

34 Donee causing death of testator disqualified from taking

35 Gifts to witnesses of wills

36 Exceptions to general rule on gifts to witnesses of will

37 Gift by codicil

38 Superfluous attestation

39 Wills not requiring attestation

40 General rules as to lapse

41 Exceptions to lapse

42 Lapse in relation to gifts to associations

43 Need for care

44 Preliminary steps

45 Taking instructions

46 Former wills

47 Composition of testator’s family

48 Extent of testator’s property

49 The foreign element in wills

50 The Succession Regulation

51 Directions as to disposal of testator’s body

52 Decided cases and the drafting of wills

53 Delegation of testamentary power

54 Taxation implications

55 Customary form of will

56 Usual order of clauses

57 Commencement of wills

58 Revocation clauses

59 Purposes of appointment

60 Number of executors

61 Persons to appoint

62 Appointment of trustees

63 Testamentary guardians

64 Immediate legacy to surviving spouse or dependant

65 Specific legacies

66 Specific devises

67 General legacies

68 Legacies to solicitors and executors

69 Conditional legacies

70 Abatement of legacies

71 Annuities

72 Disposition by will of entailed interest

73 Gifts to minors

74 Gifts to charities

75.1 The beneficiary principle

75.2 Exceptions to beneficiary principle: valid but unenforceable trusts

76 Gifts to unincorporated associations

77 Gifts on protective trusts

78 Gifts to pilot trusts and gifts on trust generally

79 Reasons for using options to purchase

80 Terms of option to purchase

81 Time for exercise of option to purchase

82 Method of valuation

83 Perpetuities and Accumulations Act 2009 and options to purchase

84 Disposition of residue

85 General points on drafting gifts of residue

86 Absolute gifts

87 Trusts of residue

88 Providing for different sides of the family

89 Providing for disabled and infirm beneficiaries

90 Inheritance tax considerations

91 Discretionary trusts

92 Inheritance tax and the residuary estate

93 Successive interests and apportionment

94.1 Basic rule in Howe v Earl of Dartmouth

94.2 When the rule in Howe v Earl of Dartmouth does not apply

95 Rule in Allhusen v Whittell

96 Rule in Re Earl of Chesterfield’s Trusts

97 Duty to apportion

98 Statutory provisions for apportionment of periodical payments

99 Civil partners and will drafting

100 Same sex spouses and will drafting

101 General points on meaning of ‘children’ in wills

102 Meaning of ‘issue’

103 Adopted persons

104 Legitimated persons

105 Illegitimate persons

106 Nephews and nieces by blood or by marriage

107 Artificial insemination

108 Ova and embryo donation

109 Modifying the rules

110 Effect of legal recognition

111 Meaning of ‘satisfaction’ and ‘ademption’

112 Presumption of satisfaction of portions debt by legacy, and of ademption of legacy by subsequent portion

113 Meaning of a portion

114 Satisfaction and ademption pro tanto

115 Operation of presumptions of ademption and satisfaction

116 Donor must be parent or in loco parentis

117 Strength of presumption against double portions in different cases

118 Slight differences do not rebut presumption against double portions

119 Gifts must be of the same kind

120 Difference in limitations

121 The same donee requirement

122 Admission of extrinsic evidence

123 Ademption of legacies given for a particular purpose

124 Satisfaction of ordinary debts by legacies

125 Rebuttal of presumption of satisfaction of a debt by a legacy

126 Identification of beneficiaries

127 Retention of house as residence

128.1 Use of such a clause

128.2 Method of bringing advances into account

129 Typical situations in which trusts are used in wills

130 Types of will trust

131 General matters in drafting of will trusts

132 Will drafting after the Trusts of Land and Appointment of Trustees Act 1996

133 General relationship between personal representatives and trustees

134 When personal representatives become trustees

135 Appointment of same persons as executors and trustees

136 Other differences between personal representatives and trustees

137 General position as to will trustee powers

138 Exercise of discretionary powers: grounds of invalidity

139 General position as to will trustee duties

140 Statutory duty of care

141 Functions to which the statutory duty of care applies

142 Exemption clauses

143 Protection by advertisement

144 Protection against rent and covenants

145 Protection as to notice

146 Protection by court authority

147 Relief by the court

148 Authority in will

149 Professional conduct rules and charging

150 Implied charging clause under the Trustee Act 2000

151 Reimbursement of expenses

152 Statutory power of maintenance

153 Disposal of accumulations

154 Express powers of maintenance

155 Statutory power of advancement

156 Exercise of power of advancement

157 Consent to advancements

158 Express powers of advancement

159 General power of investment under the Trustee Act 2000

160 Standard investment criteria

161 Duty to obtain advice before investing

162 Acquisition of land

163 Express powers of investment

164 Power to employ agents

165 Persons who may act as agents

166 Terms of agency

167 Appointment of nominees and custodians

168 Persons who may be appointed as nominees or custodians

169 Terms of appointment of nominees and custodians

170 Remuneration and expenses of agents, nominees and custodians

171 Review of agents, nominees and custodians

172 Liability of trustees for agents, nominees and custodians

173 Protection of third parties

174 Power to delegate for a period not exceeding 12 months

175 Delegation under the Trusts of Land and Appointment of Trustees Act 1996

176 Delegation under the Trustee Delegation Act 1999 Section 1

177 Application of the ‘two-trustee rules’ to an attorney acting for a trust

178 Power to insure

179 Power to give receipts

180 Power of compromise, compounding debts, apportionment and severance of funds

181 Power to value trust property

182 Powers of sale

183 Power to sell subject to depreciatory conditions

184 Power to concur in dealings with undivided shares despite interest

185 Powers and duties as to property not in possession

186 Audit

187 Miscellaneous powers

188 Power of appropriation

189 Power to accept receipts

190 General points on trusts of land

191 Settlements of land before 1 January 1997

192 Settlements of land after 31 December 1996

193 Trusts for sale

194 Number of trustees

195 Registered land

196 Personal representatives and the Trusts of Land and Appointment of Trustees Act 1996

197 General powers under the Trusts of Land and Appointment of Trustees Act 1996

198 Power to convey land to beneficiaries

199 Power to partition

200 Restriction and exclusion of powers

201 Trust for sale and the power to postpone

202 Consultation with beneficiaries

203 Delegation of powers under the Trusts of Land and Appointment of Trustees Act 1996

204 Right of beneficiaries to occupy trust land

205 Application to the court

206 Power of appointment of new trustees

207 Cases where beneficiaries can appoint new trustees

208 Cases where beneficiaries cannot appoint new trustees

210 Exercise of special power of appointment

211 Perpetuity period in relation to exercise of powers

212 Formalities for exercise of powers

213 Power to appoint spouse or civil partner successive life interest

214 Law governing formal validity of will

215 Signing and attestation of wills governed by English law

216 Testimonium and attestation clauses

217 Temporary amendments to rules on signing and attestation of wills governed by English law

218 Drafting of codicils

219 Variations and disclaimers

220 Dangers of relying on a post-death variation

221–225 General issues with storage of wills

226 Duties of will drafter to client

227.1 White v Jones principle

227.2 Scope of White v Jones principle

227.3 Conflicting duties of will drafter to testator and beneficiaries

228 Beneficiary as client of will drafter

229 Duties relating to tax advice given to testator

230 Taking of instructions for a will

231 Professional conduct

232 The golden rule

233 Failures of advice by those preparing wills

234 Gifts by testators to person drafting will

235 Delay in preparation of will

236 Negligent execution of will

237 Duty to supervise execution of will

238 Clerical errors in and rectification of will

239 Causation in negligence relating to wills

240 Damages for negligence relating to wills

241 Accrual of cause of action for negligence relating to wills

242–250 Date of knowledge of facts relevant to negligence action: Limitation Act 1980 Section 14A

251 General points on taxation of estates

252 Introduction to inheritance tax

253 Gifts subject to a reservation of benefit (‘GWR’)

254 Transfers on death: basis of inheritance tax

255 Liability to pay inheritance tax

256 Introduction to exempt transfers from inheritance tax

257.1 Annual exemption from inheritance tax

257.2 Small gifts exemption from inheritance tax

257.3 Normal expenditure out of income: exemption from inheritance tax

257.4 Gifts in consideration of marriage or formation of civil partnership: exemption from inheritance tax

257.5 Dispositions by one spouse or civil partner for maintenance: exemption from inheritance tax

258 Gifts between spouses or civil partners: exemption from inheritance tax

259 Gifts to charities and housing associations: exemption from inheritance tax

260 Gifts to charities and registered clubs: lower rate of inheritance tax

261 Gifts to political parties: exemption from inheritance tax

262 Gifts for national purposes: exemption from inheritance tax

263 Employee trusts: exemption from inheritance tax

264 Deferral relief for woodlands from inheritance tax

265 Property excluded from an inheritance tax charge

266 Changes to the inheritance tax treatment of settlements

267 Relevant property regime for taxation of will trusts and settlements

268 Introduction

269 Immediate post-death interests in possession (‘IPDIs’)

270.1 General points on trusts for testator’s children

270.2 Bereaved minor trust

270.3 Age 18-to-25 (‘Section 71D’) trust

270.4 Calculation of inheritance tax charge on age 18-to-25 trusts

271 Creating will trusts after the Finance Act 2006

272–280 Pecking order of privileged will trusts

281 Introduction to inheritance tax considerations for the will drafter

282 Relevant property regime of inheritance tax; ‘privileged’ trusts

283 Past usage of nil rate band of inheritance tax

284 How transferable nil rate band legislation operates

285 Inheritance tax position on first death out of spouses or civil partners

286 First spouse dying before 12 March 1975: tax position

287 Death on active service etc exemption from inheritance tax

288 Death of surviving (second) spouse or civil partner: making claim to transfer unused nil rate band

289 Using transferred nil rate band of inheritance tax

290 Lifetime gifts by surviving spouse or civil partner: tax position

291 Will trusts created by a surviving spouse or civil partner: tax position

292 Nil rate band maximum

293 Claim to transfer unused nil rate band: issues for the survivor’s personal representatives

294 Impact on drafting inheritance tax efficient wills of transferable nil rate band

295 Desirable situations to establish nil rate band discretionary trusts (‘mini-discretionary trusts’)

296 The effect of the introduction of the residential nil rate band

297 Surviving spouse or civil partner who remarries: inheritance tax considerations

298 Background to the introduction of the residential nil rate band

299 Residential nil rate band legislation: immediate consequences

300 Residential nil rate band: the amount of the relief

301 Residential nil rate band: the taper restriction

302 What is a ‘qualifying residential interest’?

303 The property must be ‘closely inherited’

304 Discretionary will trusts and post-death arrangements

305 Deceased occupying the property under a trust

306 Lifetime gifts and reservation of benefit

307 Transfer of unused residential nil rate band

308 How the residential nil rate band is applied in calculating tax on death

309.1 Will drafting

309.2 Estate planning

309.3 Points for personal representatives/trustees

310 Introduction to inheritance tax relief to encourage charitable giving

311 The composition of an inheritance tax estate

312 How the inheritance tax relief operates

313 When the inheritance tax relief operates

314 Electing to merge components

315 Electing to opt out of lower inheritance tax rate

316 Miscellaneous technical provisions

317 Variations and post death alterations

318 Practical implications

319 Considerations when making provision for spouse or civil partner in will

320 Should gift to surviving spouse or civil partner be outright or in trust?

321 Reservation of benefit and termination of an immediate post-death interest (‘IPDI’) during beneficiary’s lifetime

322 Scope of Finance Act 1986 Section 102ZA

323 Drafting implications of Finance Act 1986 Section 102ZA

324 Limitations of Finance Act 1986 Section 102ZA

325 Considerations when making provision for cohabitee and children in will

326 Vested or contingent gifts to children by will?

327 Vested gifts to children by will

328 Contingent gifts to children by will

329 Contingent pecuniary legacy to infant

330 Overlap of ‘privileged’ trusts for inheritance tax purposes

331 Excluding child’s right to income under a will trust to preserve age 18-to-25 inheritance tax status

332 Circumventing the restriction on successive immediate post-death interests in possession (‘IPDI’) with general powers of appointment

333 Considerations when making provision for grandchildren in will

334 Inheritance Tax Act 1984 Section 144

335 The Frankland trap and its removal

336 The 2006 amendments

337 Drafting two-year discretionary trusts

338 Pros and cons of Inheritance Tax Act 1984 Section 144 trusts

339 Division of residue of estate and Benham and Ratcliffe cases

340 Free of tax clauses in wills

341 Survivorship clauses in wills

342 Commorientes

343 Drafting wills for post-death variations or disclaimers

344.1 Agricultural property relief, business property relief and inheritance tax

344.2 Specifically given property attracting agricultural or business property relief

344.3 Property attracting agricultural or business property relief not specifically given

344.4 Problems with ‘nil rate band’ legacies and agricultural/business property relief

345 Liability to pay inheritance tax on lifetime (inter vivos) gifts

346 Contingent pecuniary legacy to infant

347–360 Annuities left by will

361 Introduction to use of trusts in wills

362 Implications for will drafters of using trusts

363 Typical will trusts

364 Nil rate band will trusts

365 Immediate post-death interests in possession (‘IPDIs’) and general powers of appointment

7 Mutual wills

14 Soundness of mind, memory and understanding

23 Co-owners

24 Property not belonging to the testator

32 Grounds which may cause gift to fail

35 Gifts to witnesses of wills

49 The foreign element in wills

74 Gifts to charities

76 Gifts to unincorporated associations

77 Gifts on protective trusts

78 Gifts to pilot trusts and gifts on trust generally

83 Perpetuities and Accumulations Act 2009 and options to purchase

85 General points on drafting gifts of residue

87 Trusts of residue

90 Inheritance tax considerations

109 Modifying the rules

113 Meaning of a portion

127 Retention of house as residence

129 Typical situations in which trusts are used in wills

135 Appointment of same persons as executors and trustees

136 Other differences between personal representatives and trustees

141 Functions to which the statutory duty of care applies

143 Protection by advertisement

144 Protection against rent and covenants

147 Relief by the court

149 Professional conduct rules and charging

158 Express powers of advancement

162 Acquisition of land

165 Persons who may act as agents

166 Terms of agency

173 Protection of third parties

180 Power of compromise, compounding debts, apportionment and severance of funds

182 Powers of sale

185 Powers and duties as to property not in possession

186 Audit

188 Power of appropriation

195 Registered land

201 Trust for sale and the power to postpone

209 Exercise of general power of appointment

210 Exercise of special power of appointment

214 Law governing formal validity of will

218 Drafting of codicils

231 Professional conduct

234 Gifts by testators to person drafting will

235 Delay in preparation of will

261 Gifts to political parties: exemption from inheritance tax

263 Employee trusts: exemption from inheritance tax

268 Introduction

282 Relevant property regime of inheritance tax; ‘privileged’ trusts

287 Death on active service etc exemption from inheritance tax

291 Will trusts created by a surviving spouse or civil partner: tax position

293 Claim to transfer unused nil rate band: issues for the survivor’s personal representatives

320 Should gift to surviving spouse or civil partner be outright or in trust?

328 Contingent gifts to children by will

333 Considerations when making provision for grandchildren in will

334 Inheritance Tax Act 1984 Section 144

338 Pros and cons of Inheritance Tax Act 1984 Section 144 trusts

343 Drafting wills for post-death variations or disclaimers

344.1 Agricultural property relief, business property relief and inheritance tax

364 Nil rate band will trusts

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