Barbri+Sqe+ +Wills

Wills and the
Administration
of Estates
Study Guide
WILLS AND THE ADMINISTRATION OF ESTATES
OVERVIEW
1 INTRODUCTION
When a person dies, their property passes either by will or by intestate succession. Intestate succes-
sion is the statutory method of distributing assets not passing under a will. A person known as a
personal representative settles a deceased person’s estate. Their responsibilities include obtaining a
grant of representation, paying all debts and liabilities (including inheritance tax), and transferring
the assets to the beneficiaries.
2 VALIDITY OF WILLS
The law on the validity of a will is governed by strict rules. To make a valid will, a testator (the per-
son making the will) must have: (1) had legal and mental capacity at the time the will was made; (2)
intended to make a will; and (3) executed (that is, completed) the will in accordance with certain
formalities, including how it was signed and witnessed.
To have mental capacity, the testator must have understood, at the time of execution of their will: (1)
the nature of the act (that is, that they were making a will and its effects); (2) the extent of their prop-
erty; and (3) the claims to which they ought to give effect.
The testator must have two types of intention: (1) a general intention to make a will and (2) a specific
intention to make the particular will. As part of the specific intention, the testator must have known
and approved the will’s contents. There is a general rebuttable presumption of capacity and knowledge
and approval. However, a will made under force, fear, fraud, or undue influence can be invalidated.
To be valid, a will must comply with certain formalities. The will must be: (1) in writing; (2) signed
by the testator or by some other person in the testator’s presence and by their direction; (3) signed or
acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(4) signed by each witness in the presence of the testator.
3 ALTERATION, AMENDMENT, AND REVOCATION OF WILLS

If changes are made on a will document, they are valid if they were made before the will’s execution.
Evidence is required to prove that an alteration was made prior to execution. After a will is made, it
can be altered or amended and then re-executed, but usually instead it is altered or amended through
a codicil. A codicil is a brief document that amends or partially revokes an existing will. A codicil
must be executed with the same formalities as a will.
A will can also be revoked by law or by the act of the testator. Marriage revokes a will by law in most
circumstances. Divorce, on the other hand, does not usually revoke the entire will by law, just the
gifts to the former spouse. A testator can revoke a will by including an express clause to that effect in
a later will. Physical destruction of a will by the testator or by someone on their instruction is also an
effective method of revocation.
4 INTERPRETATION OF WILLS
If there is a valid will, there are likely to be different types of gifts (or ‘legacies’) contained within it to
the relevant beneficiaries. These include specific, general, pecuniary, and demonstrative legacies. The
remainder of the estate, after satisfying all stated legacies and paying off debts and expenses, is known
as the ‘residue’ and will be distributed to the named residuary beneficiaries.
Legacies can fail (‘adeem’ or ‘lapse’) for a variety of reasons, including if the legacies are not set out
properly in the will. For example, if the beneficiary or the beneficiary’s spouse or civil partner wit-
nesses the will, a gift to them in the will fails, although the will itself remains valid. Wills often con-
tain substitution clauses to cover gifts that would otherwise fail.
Ordinarily, a gift will fail if the beneficiary (the person named in the will as the recipient of the gift)
fails to survive the testator. However, there are special rules that apply to gifts to the deceased’s lineal
descendants (known as their ‘issue’) so that those gifts will not fail; instead the gift will pass down the
line to the next generation. For example, if a gift is made to the testator’s child or other issue (for ex-
ample, a grandchild) who dies before the testator and who leaves living issue (that is children, grand-
children, et cetera), the living issue will receive the gift.
Gifts to a class of beneficiaries, such as children or grandchildren, can also bring problems in determin-
ing who exactly falls within the class and at what point the class ‘closes’ so that the personal representa-
tives can correctly distribute the estate to the correct beneficiaries. Generally, a class closes when at least
one beneficiary has a vested interest. A person has a vested interest when the conditions in the will enti-
tling the person to the gift have been met and no provision in the will can effectively take the gift away.
5 INTESTACY
If there is no valid will, or the will does not adequately deal with the residue such that there is a par-
tial intestacy, then the rules of intestacy come into effect. Intestate succession is the statutory method
of distributing assets that are not disposed of by will. After the personal representatives have paid off
all debts and expenses, the residue is shared between those entitled to it according to statutory rules.
The order of entitlement is strict and is influenced by whether the deceased left a surviving spouse or
civil partner. If the deceased is survived by a spouse or civil partner but no issue, then the survivor
inherits the entire estate.
6 PROPERTY PASSING OUTSIDE THE WILL OR INTESTACY

Some property cannot pass via the testator’s will or the rules of intestacy. The rules regarding such
property are strict and cannot be varied by the terms of the will. The value of such assets can be sig-
nificant and typically include property owned in joint tenancy and life assurance policies. Property
owned in joint tenancy automatically passes to the surviving joint tenant(s); a provision in a will to
the contrary has no effect. Similarly, life assurance proceeds pass to the beneficiary named in the life
assurance policy and are unaffected by any provision in a will to the contrary.
7 PERSONAL REPRESENTATIVES AND GRANTS OF REPRESENTATION

Personal representatives are the people who settle a deceased person’s estate—for example, by paying
all debts and liabilities and then transferring the assets to the beneficiaries. The term ‘personal repre-
sentative’ is a generic term, encompassing both executors—who are appointed in a will—and admin-
istrators—who are appointed by a court. Administrators are needed when there is no will or when
there is a will but no executor able or willing to act.
Someone appointed as an executor is not obliged to so act—they can renounce their role, provided
that they have not already taken any action in relation to the deceased’s estate. Alternatively, an exec-
utor can apply for ‘power to be reserved’, meaning they can step in at a later date, if required.
Most probate business is non-contentious, meaning there is no dispute and it is not contested. It is
often referred to as ‘common form’ probate business and is overseen by the Family Division of the
High Court or a District Probate Registry. If the matter is contentious, it will be dealt with by the
Chancery Division of the High Court.
A grant of representation is an order of the High Court giving one or more persons the legal author-
ity to administer the estate of the deceased. There are three common types of grant:
(1) If the deceased left a valid will that appoints executors who are willing to act, an application will
be made for a grant of probate.
(2) If the deceased left a valid will but there are no executors willing and able to apply for a grant of
probate, or if the estate is partially intestate, an application will be made for a grant of letters of
administration with will annexed.
(3) If the deceased does not leave a valid will, an application will be made for a grant of letters of
administration.
In the second and third scenarios, the order of entitlement to a grant is set out by statute. For grants
of letters of administration with will annexed, the individuals entitled to a grant include the executor
(if a partial intestacy), the trustee of the residuary estate, and any other residuary beneficiary. For
grants of letters of administration, the order of entitlement begins with the surviving spouse and then
moves on to children of the deceased and then other relatives.
The grant gives the personal representatives the authority to deal with the deceased’s estate and also
establishes the validity of the will or whether the deceased died without making a will. Technically,
authority for executors exists from the date of death when there is a grant of probate, and they can,
in theory, act from that date. Authority to act for administrators exists only once the grant is ob-
tained.
A grant of administration de bonis non is a second grant made to allow the completion of the
administration of the deceased’s estate after the death of the sole or last surviving personal represen-
tative. An application for administration de bonis non may also be granted when a previous grant has
been revoked. However, no such grant is necessary when a ‘chain of representation’ exists. This hap-
pens when a sole or last surviving executor of estate 1 dies and that executor’s executor takes a grant
of probate as to estate 2 (the deceased executor’s estate). By taking a grant of probate for estate 2, the
executor automatically becomes the executor of estate 1.
8 PRE-GRANT PROCEDURE
A probate solicitor needs to acquire a lot of information as part of the probate process. In addition,
the death will have to be registered, assets valued, and the validity of any will verified.
A circular problem exists in that any inheritance tax due on the estate has to be paid to obtain a grant.
However, to pay the tax, the personal representatives may need to access and sell assets in the estate.
But to do that, they need a grant of representation. One option is a process by which bank account
funds can be paid directly to Her Majesty’s Revenue and Customs (‘HMRC’). Other options include
borrowing from a bank or even from beneficiaries.
9 APPLYING TO THE COURT

Application for a grant is made via the appropriate application form. Completed forms and other
required papers—including any will, death certificate, and HMRC inheritance tax forms— are sent to
the relevant Probate Registry. If all is in order, the grant is prepared and sealed by the court.
Sometimes, further evidence is required by the court before issuing a grant. This can include evidence
of due execution of will, or knowledge and approval of its contents, or about the condition of the will.
Individuals can register a caveat to prevent the issue of a grant of representation—for example, if the
executor named in the will lacks mental capacity to act or the applicant believes the will to be invalid.
If the matter cannot be resolved, the court may determine the issue.
A citation to take probate may be used when an executor has lost their right to renounce probate by
intermeddling in the estate but has not applied for a grant and does not intend to do so. Once cited by
the Probate Registry, the executor must proceed with an application for a grant of probate.
10 DEALING WITH HER MAJESTY’S REVENUE AND CUSTOMS

The personal representatives are under a duty to deliver an inheritance tax account itemising the val-
ue of the deceased’s estate for inheritance tax purposes and pay any tax due. All assets and liabilities
must be valued under strict HMRC guidelines and disclosed in the relevant form—unless the estate
qualifies as an ‘excepted estate’.
An estate that owes no inheritance tax is called an ‘excepted estate’. If an estate is excepted, no formal
account has to be filed unless HMRC request one. There are detailed conditions that have to be sat-
isfied for an estate to qualify as ‘excepted’, such as that the deceased must have died domiciled in the
UK and that the total gross value of the estate must not exceed certain thresholds.
11 DUTIES AND POWERS OF PERSONAL REPRESENTATIVES

Personal representatives (‘PRs’) have a statutory duty to collect the deceased’s assets and pay off debts
and legacies, and then distribute the residue per the will or intestacy rules. PRs should adhere to their
duties to avoid being sued by unhappy beneficiaries.
Legislation provides various powers for PRs—for example, the powers to sell assets and to insure
them, to advance capital, and to delegate functions. The deceased’s will may expressly extend, replace,
or add to these powers.
A sole PR has the same powers as two or more and thus can give a valid receipt for the proceeds of
sale of land. Joint PRs have joint and several authority, so the act of one binds all others and the estate.
However, all PRs must join for the transfer of land and shares. PRs’ powers and duties are fiduciary
and must, therefore, be exercised in good faith and in the interest of the estate as a whole.
12 PROTECTION OF PERSONAL REPRESENTATIVES

PRs are personally liable to any unpaid beneficiary or creditor, even if not known when a distribution
is made, unless they place adverts in the London Gazette, a local newspaper, and any other appro-
priate newspaper. PRs should also search for land held for creditors and for bankruptcy declarations
against the deceased and beneficiaries.
If the PRs cannot find a known beneficiary or creditor, they have various options, including making
the payment into the court, distributing the estate with an indemnity from the beneficiaries, seeking a
court order giving leave to distribute the estate, and purchasing insurance against the risk of a missing
claimant appearing. If the PRs fail to adopt one of these options, they remain potentially liable to a
later claim by a beneficiary or creditor.
PRs should wait to distribute the estate until six months have passed from the issue of the grant to
protect themselves from a claim from an applicant who claims they have not been reasonably provid-
ed for.
13 COLLECTING AND REALISING ASSETS

The PRs’ priority should be to realise sufficient funds to pay off any loan taken out by the PRs to cover
the estate inheritance tax liability. Unsecured debts owed to the deceased should be collected as soon
as possible, taking legal action if required. In deciding to sell assets, reference should be made to the
will and beneficiaries’ wishes, as well as any tax considerations.
If the estate is insolvent—that is, its liabilities exceed its assets—then the applicable law for payment
of debts must be followed. The law sets out the order in which debts must be paid. In insolvent es-
tates, secured creditors enjoy priority over unsecured creditors. The beneficiaries will receive nothing.
14 POST-DEATH CHANGES
Sometimes the distribution of an estate, via either a will or the rules of intestacy, is not satisfactory or
suitable. This may be due to inadequate provision for certain beneficiaries, beneficiaries who do not
want the property left to them, or wasted tax-saving opportunities. There are two methods by which
changes can be made to the dispositions of an estate after the deceased’s death: a disclaimer and a
variation. A disclaimer allows a beneficiary to reject—or disclaim—a gift. It then falls into the resi-
due. A variation allows a beneficiary to reject a gift and control who receives it. It is possible to ‘read
back’ the variation to the date of death for tax reasons.
15 PAYMENT OF LEGACIES AND ASCERTAINING THE RESIDUE

After paying debts, funeral expenses, and tax, the PRs can give effect to the various gifts made by the
will. The correct legal procedures for transferring certain assets, such as land and company shares,
have to be followed.
When the assets of a deceased person are insufficient to fully satisfy all the creditors, their debts must
‘abate’ (that is, be reduced) proportionately, and the creditors must accept a lower value in satisfac-
tion of the debt. Similarly, when the estate’s assets are insufficient to pay all the legacies in full, the
legacies abate in proportion.
After paying debts and legacies, the PRs determine the residue to be distributed after taking account
of the following: tax issues, a corrective account (which must be filed when the initial inheritance tax
paid on the estate was incorrect), reasonable funeral expenses, professional and legal costs, and the
PRs’ own remuneration if they are acting in a professional capacity.
16 ESTATE ACCOUNTS
Estate accounts are accounts that show what is available to the residuary beneficiaries. There are no
prescribed formats, but, if not combined in one account, the estate accounts often comprise these
three accounts (accompanied by a commentary): income account, capital account, and distribution
account.
The accounts are sent to the residuary beneficiaries for them to endorse—and for them to formally
discharge the PRs with an agreement to indemnify them against all claims and demands subsequently
arising against the estate.
17 ASSENTS
An assent occurs when the PRs acknowledge they do not require an asset for the purposes of admin-
istration and transfer it to a beneficiary. An assent relates back to the date of death. An assent of land
must be in writing, be signed by the PRs, and name the person in whose favour it is given. Purchasers
are given protection when buying land from PRs or from beneficiaries who have been given an assent.
18 BENEFICIARIES’ RIGHTS AND REMEDIES

When difficulties arise in the administration of the estate, beneficiaries’ options include administra-
tion proceedings and actions to recover loss suffered. Administration proceedings are designed to
ensure that the estate administration is properly conducted. Actions to recover loss suffered include
suing the PRs personally or ‘tracing’ to recover estate assets in some circumstances.
19 CLAIMS AGAINST ESTATES (PROVISION FOR FAMILY AND DEPENDANTS)

Under the Inheritance (Provision for Family and Dependants) Act 1975, an application for a family
provision claim may be made to the court to set aside the terms of a will (or vary an intestacy) on the
grounds that reasonable financial provision has not been made for the applicant. To bring a claim,
the applicant must be a surviving spouse or civil partner, a child of the deceased or a person treated
as a child of the deceased, a person who was being maintained by the deceased, or a person who was
living with the deceased during the two years before their death.
If a person is eligible to make a claim, the process for determining what constitutes reasonable finan-
cial provision is two-fold:
• Proving that the will or intestacy rules failed to make reasonable financial provision for the appli-
cant; and
• Proving what a reasonable financial provision would be.
The court has various guidelines to consider when determining what is ‘reasonable’, such as the finan-
cial resources and needs of the applicant, the size and nature of the deceased’s estate, and any moral
obligation of the deceased to the applicant. If the court approves the application, the court can order
the transfer of property, payment of a lump sum or income, and the settlement of property on trust
for the applicant. The estate then is distributed according to the terms of the court’s order and not in
accordance with the will or intestacy rules.
1 EXECUTION OF WILLS NOTES
1.1 INTRODUCTION
When a person dies, their estate (assets and liabilities)
needs to be dealt with and distributed. This can be con-
trolled by a person’s will (if they have a valid will when they
die), by the laws of intestacy (if they died without a valid
will), or by both in some circumstances. Sometimes there
will be property that passes by other rules. In this chapter,
we will discuss the requirements for creating a valid will.
1.2 CREATING A VALID WILL

To make a valid will, a testator (that is, the person making
the will) must have:
• Had capacity at the time the will was made;
• Intended to make a will; and
• Executed the will in accordance with certain formali-
ties.
As a general rule, if any of these requirements is missing,
the will cannot be offered into probate.
1.3 CAPACITY
To validly make a will, in most cases the testator must be at
least age 18 (there is an exception for ‘privileged wills’ made
by members of the armed forces on active service or sea-
men at sea) and must have had mental capacity. However, a
person will be presumed to have had mental capacity unless
someone challenging the validity of a will proves the testa-
tor lacked capacity.
1.3.1 Test for Capacity

By statute, a person lacks capacity if:
• At the material time,
• The person is unable to make a decision for themselves

NOTES in relation to the matter in question,
• Because of an impairment of, or a disturbance in the
functioning of, the mind or brain.
Essentially, this is a restatement of the common law test
(which might make things a little clearer): To have mental
capacity, the testator must have understood, at the time of
execution of their will:
• The nature of the act (that is, that they were making a
will and its effects);
• The extent of their property; and
• The claims to which they ought to give effect (that is,
who normally would be the persons a testator would or-
dinarily give gifts to—this doesn’t mean that only these
persons should be given gifts, but rather only that the
testator understood who these persons would be).
1.3.2 What Is the Material Time?

In most cases, the material time is when the testator exe-
cuted (signed) the will. However, occasionally (especially in
exams) a testator will not have had adequate mental capac-
ity at the date of executing the will but will have had suffi-
cient capacity when giving instructions to the will drafter.
In such a case, if the will was prepared in accordance with
those instructions and, at the time of execution, the testator
understood they were signing a will for which instructions
had previously been given, the testator will be deemed to
have acted with capacity.
EXAMPLE
A client wishes to have a will arranged. He tells you that he has
Alzheimer’s disease. With his consent, you contact the client’s
doctor. She tells you that the client has moderate dementia and
certainly has times, more often than not, when he would have the
necessary capacity to make a will.
To prevent any challenge to the will at a later date, you arrange

for the doctor to be present at the signing of the will. The doctor NOTES
should either sign as a witness or provide a note confirming that
the client at the time of execution was capable of understanding
the nature and effect of the will. You should also make a file note
of the circumstances existing at the time of execution of the will.
1.4 INTENTION
For a will to be valid, the testator must have had the inten-
tion to make a will. This intention was present if the testator
had:
• A general intention to make a will, and
• A specific intention to make the particular will—that is,
the testator must have known and approved the con-
tents of the will when the testator executed it.
1.4.1 Rebuttable Presumption of Knowledge and

Approval
Similar to capacity, there is a general rebuttable presump-
tion of knowledge and approval—that if the testator had
the required mental capacity, they acted with the requi-
site knowledge and approval. Therefore, a challenger has
the burden of proving lack of proper intention, usually by
showing the testator made the will as a result of fear, fraud,
undue influence, or mistake.
However, the presumption does not apply in two circum-
stances:
• If the testator is blind or illiterate, or the will is signed
on the testator’s behalf (it is usual in such cases to
include a statement in the attestation clause of the will
stating that the will was read to the testator or that it
was read by them and they knew and approved the con-
tents—see 1.5.1 below); or
• If there are suspicious circumstances, such as where
the will drafter substantially benefits from the will, the
gift will fail unless evidence of the testator’s knowledge

NOTES and approval of the gift is offered by the person putting
forward the will.
EXAMPLE
The testator was an elderly bachelor with no surviving close rel-
atives. He executed a will in 2011 which left his estate to a cousin
and two family friends. In 2013, he executed a new will which left
his entire estate to a builder whom he had known for about six
years. The testator died in 2013. The beneficiaries under the 2011
will challenged the 2013 will for want of knowledge and approval.
The parties agreed that the testator had duly executed the 2013
will and had capacity at the time, which gave rise to the strong
inference of knowledge and approval. In addition, the court
found that: (1) the will was short, easy to understand, and capa-
ble of being readily understood by the testator; (2) the testator
was literate and had a good understanding of his affairs; (3) the
testator asked two individuals to witness the will, so he knew he
was executing a new will; (4) the testator waited a few weeks to
give the will to the builder and so had had the opportunity to re-
voke it; and (5) the testator gave the will to the builder and asked
him to read it, which was consistent with naming the builder
his executor and beneficiary. Finally, the court decided that any
degree of suspicion was relatively low because the 2013 will was
not procured by the person benefiting under it, the builder. The
court therefore concluded that the builder had shown sufficient
evidence to conclude that, on the balance of probabilities, the tes-
tator had understood what was in the 2013 will when he signed
it and what its effects would be. (See Sharp v Hutchins [2015]
EWHC 1240 (Ch))
a. Gifts to Solicitors
If regulated by the Solicitors Regulation Authority (‘SRA’),
a solicitor is required to act with honesty and integrity. It
is sensible to have a policy of refusing to act when a client
proposes to make a gift of significant value to a fee earner in
a firm (or a member of their family) unless the client seeks
independent legal advice. This also avoids any conflict of
interest.
1.4.2 Duress
NOTES
If a will is made as a consequence of force, fear, fraud, or
undue influence, it is not regarded as the act of the testator
and is not admitted to probate. Duress occurs when the
testator has been injured or threatened with injury. A will
that has been made as a result of force and fear (that is,
under duress) will be admitted to probate only if a court
pronounces that it is valid and issues a grant in solemn
form. To receive a grant in solemn form, the executor, or
any person interested in the will, propounds the will in a
claim in which they ask the court to determine the validity
of the will. (To propound a will means to take legal action
to have it authenticated as part of the probate process.) All
interested persons will be parties to the claim. Upon hear-
ing evidence, the court will pronounce as to the validity of
that will. If the will is pronounced valid, the court will order
the issue of a grant of probate (see later).
EXAMPLE
A testator was induced by threats of violence to omit a legacy
from his most recent will. Because the testator omitted the legacy
under duress, the court ruled that the disappointed beneficia-
ry was entitled to the benefit he would have received under an
earlier will.
1.4.3 Undue Influence

Undue influence is something that overpowers the volition
of the testator. It is permissible to persuade a testator but
not to coerce them. Distinguishing between the two may be
difficult. Anyone alleging undue influence has to show more
than persuasion. They need to prove that there was coercion
or pressure that overpowered the freedom of action of the
testator. Undue influence is not presumed, but the court will
intervene if the testator surrendered to intolerable pressure.
The court is more inclined to find undue influence when
the testator is physically or mentally weak.
NOTES EXAMPLE
A testator’s will left her estate in equal shares to her three chil-
dren: Alex, Brian, and Cordelia. The testator had a close rela-
tionship with Alex and Cordelia, but her relationship with Brian
was strained after years of emotional abuse. The testator became
ill and moved into a nursing home. Brian removed her from
the nursing home and prevented her from contacting Alex and
Cordelia. The testator began making false accusations against
Alex and Cordelia, and she executed a new will in which she left
her entire estate to Brian. If Alex and Cordelia challenged the
second will, a court would likely hold that the will was procured
by Brian’s undue influence.
1.5 FORMALITIES
As a general rule, to be valid a will must be:
• In writing (that is, handwritten, typed, or printed as
opposed to oral);
• Signed by the testator or by some other person in the
testator’s presence and by their direction in a way that
makes it appear the testator intended by the signature to
give effect to the will;
• Signed or acknowledged by the testator in the presence
of two or more witnesses present at the same time; and
• Signed by each witness in the presence of the testator
(but not necessarily in the presence of any other wit-
ness), or each witness must acknowledge their prior
signature in the presence of the testator (again, not
necessarily in the presence of any other witness).
Note that these rules do not apply to privileged wills, which
can be made informally, even orally.
1.5.1 Attestation Clauses

Usually an attestation clause will be included to confirm the
above requirements. A typical clause states, “Signed by the
testator in our presence and then by us in his”. If an attes-
tation clause is not included in a will, the proponent of the

will (that is, the person offering the will into probate) must
NOTES
offer proof that these formalities were followed—usually in
the form of having one of the witnesses testify.
a. Special Attestation Clauses
A special attestation clause is necessary for a blind or
illiterate testator, to evidence that it was read to them, they
understood and approved its contents, and they then signed
or it was signed by another in the testator’s presence and at
his direction.
EXAMPLE
“The testator being unable to read [or blind], this will was read to
the testator and he stated that he understood it. It was then signed
by the testator with his mark in our presence and attested by us in
the presence of the testator and in the presence of each other”.
1.5.2 Signature Requirements

a. Form of Signature
Although usually the testator’s actual signature is used, a
mark (for example, a thumbprint) can be used for someone
unable to write. The following have all been held to be suf-
ficient to amount to a valid signature provided that was the
testator’s intention:
• Initials,
• A stamped signature,
• A mark such as a cross,
• An unfinished signature,
• A signature in pencil, and
• The words “your loving mother”.
b. Placement on Will
Although usually the testator’s signature will appear at the
end of the will, it may appear anywhere. For example, if a
will is handwritten by the testator and begins, “I [the testa-

NOTES tor’s name]”, this line may serve as the signature.
c. Another Person May Sign on Testator’s Behalf
A person other than the testator may sign on the testator’s
behalf provided the signature is made in the presence of,
and by the direction of, the testator. The person so signing
may be one of the witnesses, though he need not be. The
testator must be present when the signature is made and
must in some way indicate to the witness that the signature
has been put there at his request.
EXAMPLES
1) The testator is able to read but unable to sign:
“The testator being [temporarily] unable to sign his
name [because of an injury to his hand] this will was
read by the testator and was signed by the testator with
his mark in our presence and attested by us in the pres-
ence of the testator and in the presence of each other”.
2) Another signs on behalf of a testator who cannot read or write:
“Signed by X with the name of the testator (the will hav-
ing been previously read over to him by me [X] when he
seemed thoroughly to understand and approve the same)
in his presence and by his direction and in our presence
and then signed by us in his presence”.
3) The testator signs with his mark:
“Signed by the testator with his mark (he being other-
wise unable to sign his name) the will having previously
been read over to him by me the undersigned [X] when
he seemed thoroughly to understand and approve the
content of the same in our presence and then signed by
us in his presence”.
1.5.3 Witness Requirement

There are no formal requirements about the capacity of
a witness, but they must be capable of understanding the
significance of being a witness to a signature. The witnesses
do not need to see the contents of the will or even know

that the testator is signing a will. A blind person is incapable
NOTES
of being a witness to a signature as the person’s blindness
prevents them from witnessing the visible act. Likewise, a
mentally unsound person may not serve as a witness, but a
witness’s subsequent loss of mental capacity does not affect
the validity of a will that was witnessed by a person who
was competent at the time of the witnessing. An illiterate
person is capable of being a witness, provided the person is
aware that the testator is signing the document. A benefi-
ciary of a will (or their spouse) should not be a witness (see
later).
1.6 INCORPORATION BY REFERENCE

A will may identify another document that, effectively,
becomes part of the will. Such a document must exist at the
date of the will and be referred to in the will as so existing—
otherwise, it cannot be incorporated. A future intention to
make the list, schedule, or memorandum does not suffice.
EXAMPLE
A will which states that “I leave £1,000 to each of the persons
named in my book called ‘my notebook 2019’ to be found in my
desk drawer” satisfies the conditions, whereas “I leave £1,000 to
each of the persons named in my notebook which I shall write
before my death” does not. Even if the person wrote names in
the notebook before the will was executed, the notebook would
not be admitted to probate, as the will refers to its coming into
existence at a later date.
NOTES 2 ALTERATION, AMENDMENT,

AND REVOCATION OF WILLS
As a general rule, a testator may change their mind as to
what gifts to make in a will any time before execution. A
testator may make changes to a will after it is executed as
well, but some changes require more formality than others
to be effective.
2.1 ALTERATIONS AND AMENDMENTS

Alterations will be looked at carefully by the court, and you
should make appropriate investigations to satisfy yourself
that the alterations are effective. If you are presented with a
will with words crossed out, your starting point is to see if
you can make out the words by ‘natural means’, for exam-
ple, by using a magnifying glass. If the original words are
apparent, then they may be admitted to probate rather than
the amendment, but if the original words are not apparent,
then the court will admit the will with a blank space where
the words are obliterated.
Let’s assume a testator is in the midst of handwriting a will
and writes “I leave £100,000 to my cousin Eleanor Rig-
by”—or the testator’s solicitor included that gift in a will the
solicitor prepared for the testator. The testator then reads
the will over and says, “That’s not what I wanted. I wanted
to leave Eleanor only £10,000”. The testator then puts lines
through the £100,000, writes £10,000, and then executes the
will with proper formalities. The question is—should the
will be read as including a £100,000 gift to Eleanor or only
a £10,000 gift? What if the testator did the same thing after
the will was executed?
A key fact to ascertain is when the alteration was made. The
alteration will be valid if it was made before execution, pro-
vided there is evidence to show that the alteration was made
before execution (such as statements from the witnesses or
the initials of the testator and their witnesses adjacent to
the alteration), and provided that the will reads naturally
after the amendment. Therefore, in the above example, the

will should be read as including a £10,000 gift to Eleanor
NOTES
because the alteration was made before execution, if there is
evidence to confirm this.
2.1.1 Unattested Alterations

An unattested alteration is presumed to have been made
after execution, unless it is filling in a blank space. An alter-
ation will be ineffective if: (1) it is unattested and made by
the testator after (or it cannot be established to have been
made before) execution and does not amount to an obliter-
ation; or (2) it is made by someone other than the testator
and without their knowledge and approval.
EXAMPLE
Sachin makes a will containing a clause leaving “£100,000 to my
daughter, Mendi”. He later decides to change the gift to Mendi.
The outcome of this depends on how it is done:
1) Sachin draws a line through “£100,000” and writes above it
“£200,000”. This is an unexecuted alteration. The gift remains one
of £100,000 to Mendi.
2) Sachin draws a line through “£100,000” and writes above it
“£200,000”, but this time he signs his name next to it and gets two
people to witness his signature. This is an executed alteration, and
the gift is amended to one of £200,000 to Mendi.
3) Sachin draws a thick line through “£100,000” so that the origi-
nal wording is illegible. This is an obliteration and will be treated
as revoking the original gift to Mendi. It is now a gift of nothing.
If Sachin wanted to add “£200,000” above the obliteration, this
would be effective if it were signed, initialled, and witnessed as in
2) above.
2.2 CODICILS
A codicil is (normally) a brief document that adds to,
amends, or partially revokes an existing will. It is worth
noting that:
• The codicil must make reference to the will;

NOTES
• The requirements for a valid will apply equally for a
valid codicil;
• A clause should be included in the codicil confirming
the unamended part of the will; and
• A codicil may remedy a gift which was void because the
beneficiary witnessed the will.
EXAMPLE
An attestation clause for a codicil might read:
“Signed by the testator as a first [or as the case may be]
codicil to his will dated the X day of X in our presence
and then by us in his”.
With the advent of word processing and will-writing soft-

ware, it is often simpler to prepare and execute a new will
rather than use a codicil to amend an existing will.
2.3 REVOCATION
A will may be revoked at any time by the testator, provided
they have retained testamentary capacity. A revocation may
occur automatically through the law or by a deliberate act
of the testator.
2.3.1 Automatically Through the Law

a. Marriage or Civil Partnership
If a testator marries after executing a will, the will is re-
voked unless it appears from the will that, when it was
made, the testator was expecting to marry a particular per-
son and that they intended that all or part of the will should
not be revoked by that marriage. An express statement to
this effect should be included in the will.
EXAMPLE NOTES
“I declare that I make this will expecting to be married to X and
that I intend that this will shall not be revoked by my marriage to
the said X and I further declare that this will is [not] conditional
upon on my marriage to the said X actually taking place”.
If some of the provisions of a will are to be revoked by the

marriage, that intention should be apparent from the will.
EXAMPLE
“I declare that I make this will expecting to be married to X and
that I intend that until my said marriage the provisions of Sched-
ule 1 constitutes my will and upon my said marriage Schedule 1
is revoked and Schedule 2 constitutes my will”.
b. Divorce, Dissolution, or Nullity

A will is partly revoked by the dissolution of a civil part-
nership or a decree absolute of divorce or nullity. The law
treats the former spouse or civil partner as having died on
the date of the divorce or dissolution. If the former spouse
or civil partner was appointed as an executor or trustee in
the will, the appointment will be ineffective. Any gifts to
the former spouse or partner are revoked, and the property
will not pass to them. Any substitutional provisions in the
will which are to take effect if the spouse or civil partner has
predeceased the testator will be relevant if the marriage or
civil partnership is dissolved or annulled. The remainder
of the will remains valid. These provisions do not apply on
separation. However, divorce will not amend a will if a con-
trary intention is stated.
2.3.2 Deliberate Act of the Testator

a. Executing a Later Will or Codicil
A will is revoked (wholly or partially) by a later will or
codicil, or “by some writing declaring an intention to revoke
the same and executed in the manner” of a will. However, a
later will or codicil impliedly revokes an earlier testamentary
disposition only to the extent that it is inconsistent with or

NOTES merely repeats the terms of the earlier document. For the
avoidance of doubt, it is usual for a will to contain an express
revocation clause.
EXAMPLE
“I hereby revoke all previous wills and testamentary dispositions
made by me”.
b. Destruction
A will is also revoked by “burning, tearing, or otherwise
destroying the same by the testator or by some person in his
presence and by his direction with the intention of revoking
the same”, per the Wills Act 1837. This means that the law
requires an act of destruction and an intention to revoke.
u Act of Destruction
Merely writing “cancelled” or “revoked” across the will
is not enough. Nor is putting a line through parts of it.
If only part of the will is destroyed, the destruction may
result in the revocation of that part of the will only or a
complete revocation, if a sufficiently substantial or vital
part (for example, the testator’s or witnesses’ signatures)
was destroyed. Destruction by someone other than the
testator must, to be effective, be done in the testator’s
presence and at the testator’s direction.
EXAMPLE
Alice asks Barry to destroy her will for her. Barry tears up Alice’s
will at his office when Alice is at home. This attempted revoca-
tion would not be effective as the will was not destroyed in the
presence of the testator (Alice). Alice would need to execute a
document revoking the will.
u Intention to Revoke
The testator must have the intention to revoke at the
time of the will’s destruction. The necessary mental
capacity is the same as that required for the making of

a will. If a will is found mutilated at the date of death,
NOTES
this will be rebuttably presumed to have been done by
the testator with the intention of revoking it. There is a
further rebuttable presumption that a will last known to
have been in the testator’s possession, but which cannot
be found at the date of death, has been destroyed by the
testator with the intention of revoking it.
2.3.3 Dependent Relative Revocation

Occasionally, the court may apply the doctrine of depen-
dent relative revocation to save a will. This could occur
when the testator’s intention to revoke their will was con-
ditional upon a future event, such as the later execution of
a new will. If that event did not take place, the original will
may be valid—even if it was destroyed—if it can be recon-
structed from a copy or draft.
2.4 MUTUAL WILLS

Occasionally, you may come across ‘mutual wills’. These
are wills made by two or more persons, usually with the
same clauses and conferring reciprocal benefits, further to
an agreement between them to make such wills and not to
revoke them without the consent of the other. There is a
contract between the parties that the wills are to be irrevo-
cable and will remain unaltered. This agreement creates a
constructive trust in favour of the beneficiaries. Such wills
are generally avoided by practitioners.
NOTES 3 THE INTERPRETATION OF

WILLS
We need to understand how to interpret certain provisions
contained within a will—and what happens if they ‘fail’.
3.1 DATE FROM WHICH THE WILL SPEAKS

Subject to a contrary intention in the will, a gift in a will
takes effect as if the will had been executed immediately
before death (rather than at the date of the will). This can be
superseded by use of the words “now” or “at present”. The
beneficiaries (‘objects’) of the will are determined as at the
date of the will’s execution (subject to the class closing rules
described below).
3.2 TYPES OF GIFTS

A legacy is a gift of personalty (personal property). A devise
is a gift of realty (real estate). Note that any of the legacies
below may be in the form of a trust.
3.2.1 Specific Legacy

A specific legacy is a gift of a specified part of the estate that
is clearly identified at the time of the will’s execution.
EXAMPLE
“My BMW car registration number 123XYZ4 to my daughter”.
This type of gift is subject to the doctrine of ademption (see

below), so, if the testator no longer owns that particular car
at the date of death, then the gift fails.
3.2.2 General Legacy

A general legacy does not identify a particular item.
EXAMPLE NOTES
“a BMW car”
The testator may or may not own a BMW car at the time of
making the will. The doctrine of ademption does not apply
to general legacies. Therefore, if there is no BMW in the
estate, the beneficiary is entitled to require the executors to
purchase such a car if they have sufficient funds.
3.2.3 Pecuniary Legacy

A pecuniary legacy is a gift of cash. Almost all pecuniary
legacies are general (“£1,000 to the NSPCC”), but they
could equally be specific (“£1,000 to the NSPCC payable
from the £5,000 owed to me by John Doe”) or demonstra-
tive (see below).
3.2.4 Demonstrative Legacy

A demonstrative legacy is a general legacy which identifies
the source from which the gift is to be made.
EXAMPLE
“£1,000 to the NSPCC to be paid from my savings account held
at ABC Bank”.
If the account is closed at the date of death or no longer has

sufficient funds to meet the legacy, the charity can look to
the executors to meet any shortfall from other cash or assets
in the estate.
3.2.5 Residuary Legacy

A residuary legacy is everything that is left of the de-
ceased’s estate, not otherwise disposed of by other gifts
or taken up by the payment of liabilities and the costs of
administration.
NOTES 3.3 FAILURE OF GIFTS

3.3.1 Ademption
Under the doctrine of ademption, a specific gift will fail
(or ‘adeem’) if it is no longer part of the testator’s estate, is
subject to a binding contract for sale, or no longer meets
the description in the will. A change in the substance of the
subject matter of a specific gift causes that gift to adeem, but
a mere change in the name or form does not.
EXAMPLE
The testator makes a specific legacy of ordinary shares in ABC
plc owned by them at the date of their will. The shares are in
some way altered, due to an amalgamation or reconstruction of
the company during the testator’s lifetime, but they represent the
same shares in the company. The gift does not adeem.
By contrast, if ABC plc is acquired by another company and
the shareholders are given shares in the acquiring company as
payment for their shares in ABC plc, then the substance of the
subject matter changes and the gift then adeems.
a. Changes in Assets Before Death

Problems can arise when the testator makes a specific gift of
an asset described in the will but before their death acquires
a different item which meets the same description—for
example, a gift of “my car”. The basic rule of succession
is that a will speaks from the date of death unless a con-
trary intention is apparent in the will. By referring to “my
car”, the testator is usually taken to have shown a contrary
intention, though this construction may vary according to
the circumstances. If the property is such that it can vary
in value—for example, “all my jewellery”—the testator will
usually be taken to have made a gift of any items satisfying
the description at death.
3.3.2 Lapse
If a beneficiary has predeceased the testator, the gift will
lapse (that is, fail). However, it is common practice to
include a substitutional gift in the will. If the substitutional

gift is effective, the gift will go to the substitute beneficiary
NOTES
and will not lapse. Otherwise, the subject matter of the gift
falls into the residue. If a residual gift lapses, it passes under
the rules of intestacy (see below).
EXAMPLE
Clive’s will leaves “£10,000 to my nephew, David, and the rest of
my estate to my civil partner, Richard, but if he fails to survive me
then to my sister, Ella”. Only Clive’s sister survives him; the gifts
to David and Richard therefore lapse. The legacy to David falls
into the residue, and Ella will take Clive’s entire estate.
a. Will Construed at Date of Execution

There is a presumption that, as regards people, a will is con-
strued at the date of execution. For example, a gift made to
“the eldest son of Jacob” is construed as a gift to the person
fulfilling that description at the date the will is made. If that
person dies before the testator, the gift does not pass to the
eldest surviving son of Jacob.
b. Gifts to Joint Tenants
A gift by will to two or more people as joint tenants will not
lapse unless all the recipients die before the testator. So, if a
gift is made “to A and B jointly” and A dies before the testa-
tor, the whole gift passes to B. By contrast, if the gift is “to A
and B in equal shares” (that is, there are words of severance)
and A dies before the testator, A’s share lapses and B takes
only one share. The lapsed share will pass under the intes-
tacy rules (subject to a substitutional gift being included in
the will).
c. Survival of Beneficiaries
It is common for gifts in wills to be made conditional upon
the survival of a beneficiary (other than a surviving spouse)
for a specified period of time, usually 28 or 30 days, after
the death of the testator. The gift fails if the beneficiary fails
to survive for the specified number of days.
d. Simultaneous Death
NOTES
In circumstances where it is impossible to determine who
died first out of the testator and a beneficiary, the law of
‘commorientes’ provides that, for succession purposes, the
younger person survives the elder.
EXAMPLE
Abdul, 68, and Harisha, 64, a married couple, die in a car ac-
cident. It is impossible to determine who died first, or if they
died in the same instant. Their wills each leave everything to the
surviving spouse, failing which to their two children. The law will
assume that Abdul died first as the elder of the two. His estate
therefore passes to Harisha under succession law. The combined
estate will then pass to the children under the terms of Harisha’s
will.
e. Gifts to Deceased Issue

If a gift is made to the testator’s child or other issue (remot-
er lineal descendants) who dies before the testator and who
leaves living issue, the living issue will receive the gift. This
includes children who are ‘en ventre sa mère’—conceived
but unborn. Unless a contrary intention is shown in the
will, the issue will take ‘per stirpes’, and if more than one in
equal shares. Per stirpes means ‘through the root’ and refers
to every person down a family tree beginning from another
person.
EXAMPLE
Maria’s will leaves her estate to her three sons, Adam, Byron, and
Charles equally. Charles predeceases her. He had two daughters,
Diana and Eva. On Maria’s death, Adam and Byron will inherit
one-third each. Charles’s share will be divided equally between
Diana and Eva.
COMPARE NOTES
The deceased’s will contained the words “to such of them my
daughters…as shall survive me”, and the clause containing those
words went on to provide “and if more than one in equal shares”.
The court held that had the intention been to leave the bequest
to all the daughters, the language would not have included the
words “such as them as shall survive me”—it would instead have
said “upon trust for my daughters A, B, and C”. The use of the
language “and if more than one in equal shares” indicated the
testator’s intention that the amount each one of them might get
would increase if any of the daughters predeceased her. It was
clear from the will as properly construed that a predeceased
daughter’s issue should not receive her gift. Therefore, the be-
quest would go to the surviving daughters and would not go to a
deceased daughter’s issue.
Note that this rule does not save gifts to beneficiaries other
than the testator’s issue.
EXAMPLE
Clive’s will leaves “£10,000 to my nephew, David, and the rest of
my estate to my civil partner, Richard, but if he fails to survive me
then to my sister, Ella”. Only Clive’s sister survives him. Because
David is not Clive’s issue, the legacy of £10,000 is not saved for
any of David’s children who survived Clive.
f. Gifts to Witnesses
A gift in a will fails if the beneficiary or the beneficiary’s
spouse or civil partner witnesses the will. The will itself
remains valid.
EXAMPLE
Lola asks her sister, Marsha, and her friend, Helena, to act as
witnesses to her signature in her will. Lola’s will gifts a house to
Marsha. Unfortunately, this specific gift to Marsha fails as she is a
witness to the will.
However, the gift will not fail if, ignoring the attestation
NOTES by the beneficiary or spouse or civil partner, there are at
least two other witnesses who are not beneficiaries or their
spouses or civil partners.
EXAMPLE
Lola asks her sister, Marsha, her friend, Helena, and her next-
door neighbour, Valerie, to act as witnesses to her signature in
her will. Lola’s will gifts a house to Marsha. The gift remains valid
because Marsha is an unnecessary witness, there being two other
valid witnesses in Helena and Valerie.
3.4 GIFTS TO CHILDREN

The term ‘children’ includes legitimate, illegitimate, and
adopted children—but not stepchildren.
3.4.1 Class Gifts

Class gifts can present problems. A class gift is a gift of
property to be divided among beneficiaries who fulfill a
general description—for example, “£100,000 to the chil-
dren of Kevin” or “£100,000 to the children of Kevin who
attain the age of 18”. The problem is how to divide the gift
between the relevant beneficiaries. This question cannot
be answered definitively until Kevin has died, which could
be many years later. The same issue arises where there is
an individual gift to the members of a class—for example,
“£10,000 to each of the children of Kevin”. Until Kevin’s
death we do not know how many beneficiaries will qualify
for the gift.
3.4.2 Class Closing Rules

‘Class closing’ rules have developed for vested (no condi-
tion needs to be satisfied) and contingent (for example,
where a specified age needs to be attained) gifts. These
rules apply unless the will provides otherwise. When a
class closes, it excludes any potential beneficiary not then
living. The rules are complex in this area. Normally, a
class will close when at least one beneficiary has a vested

interest—to the exclusion of any potential beneficiary not
NOTES
then living (‘living’ includes a child already conceived and
subsequently born alive).
EXAMPLE
“£5,000 to the children of Zebedee”.
The class closes at the date of the testator’s death if there is any
child of Zebedee then living. If not, the class remains open until
the death of Zebedee.
COMPARE
“£5,000 to the children of Zebedee who attain the age of 18”.
The class closes at the testator’s death if any such child has already
reached 18. It will include those children already over 18 and any
others then under 18 who later reach that age. If no beneficiary
is yet aged 18, the class remains open until the first beneficiary
reaches 18, whereupon it closes around that child and any others
then living who later reach 18.
COMPARE
“£5,000 to each of the children of Zebedee who attain the age of
18”.
The class closes at the date of the testator’s death. If no children
exist at that point, the gift fails. Strictly speaking, this is not a
class gift as the size of each beneficiary’s entitlement is fixed and
does not vary according to the number of class members. Howev-
er, such a gift shares many of the practical problems of true class
gifts—the personal representatives are likely to have difficulty
distributing the estate as they will not know how large a fund to
retain. In the absence of any provision to the contrary, the class
closes at the date of the testator’s death and includes only chil-
dren then living. The object of this rule is to allow the personal
representatives to distribute the estate.
a. Will May Exclude Rules

NOTES
A will may exclude the class closing rules through a specific
provision therein.
EXAMPLES
1) “To the children of Robert living at my death”.
2) “To my grandchildren, whenever born”.
4 INTESTACY NOTES
Intestate succession is the statutory method of distributing
assets that are not disposed of by will. The rules of intestacy
apply when:
• The deceased died having made no will, or at least no
valid will (a whole intestacy); or
• The deceased’s will does not dispose of all of their prop-
erty (a partial intestacy) because the gift of all or part of
the residue fails.
On the death of the intestate, their personal representatives
(see below) hold their estate on trust with power to sell.
They must pay the funeral, testamentary, and administra-
tive expenses, debts, and other liabilities from cash and the
proceeds of sale of assets. The residuary estate (what is left
after all the liabilities and expenses have been discharged)
is then to be shared among those entitled according to the
statutory rules.
4.1 ENTITLEMENT OF SPOUSES AND OTHER

RELATIVES
The rules for distribution of an intestate’s estate are set out
in Section 46 Administration of Estates Act 1925. The ben-
eficial entitlement is dependent upon whether the deceased
was survived by a spouse or civil partner. The spouse must
survive the deceased by 28 days.
4.1.1 Surviving Spouse with No Issue

If there is a surviving spouse but no issue, the spouse is
entitled to the entire estate.
EXAMPLE
William dies without having made a will. He was married to Flor-
ence for 50 years. They had no children. William had two broth-
ers. Florence inherits the entire estate left by William.
4.1.2 Surviving Spouse with Issue

NOTES
If there is a surviving spouse and issue, the spouse takes:
• Personal chattels (tangible moveable property, other
than money and other than assets used for business or
held for investment purposes) absolutely;
• £270,000; and
• One half of the residue absolutely.
A surviving spouse can require the personal representatives
to appropriate the matrimonial home (or the deceased’s
interest in it if they were beneficial tenants in common) to
the spouse in partial or total satisfaction of their interest.
If the property is worth more than the entitlement of the
spouse or civil partner, they can still require appropriation
provided they pay over the difference (‘equality money’)
to the estate. The deceased’s issue take the other half of the
residue absolutely.
EXAMPLE
Roberta died without a valid will. She was married to Fabio. They
had two children, Emilio, aged 27, and Octavia, aged 23. Ro-
berta’s estate comprised chattels worth £80,000 and other assets
valued at £600,000.
Under the rules of intestacy, Fabio is entitled to the chattels,
£270,000, and 50% of £333,000 (£600,000 less £270,000). If
Roberta’s estate comprises an interest in the matrimonial home,
this can be transferred to Fabio in part or full satisfaction of his
entitlement.
The remaining 50% of the residue (after any inheritance tax due)
is inherited equally by Emilio and Octavia.
4.1.3 No Surviving Spouse

If there is no surviving spouse, there is a strict order of enti-
tlement. Earlier classes take to the exclusion of later classes.
As soon as a person falling into a particular category (for
example, a sibling) is identified, the subsequent categories

of persons are ignored. The order of entitlement is:
NOTES
• Issue of the intestate on statutory trusts;

• Parents (equally if both alive);
• Brothers and sisters of the whole blood (that is, those
who share the same parents as the deceased) on statuto-
ry trusts;
• Brothers and sisters of the half blood (that is, those who
share only one parent with the deceased) on statutory
trusts;
• Grandparents (equally if more than one);
• Uncles and aunts of the whole blood on statutory trusts;
• Uncles and aunts of the half blood on statutory trusts;
and
• The Crown as ‘bona vacantia’.
EXAMPLE
Agnes dies. She was unmarried, had no children, and both her
parents were dead. She is survived by her sister and a half brother
(her mother had remarried and had a son by her second hus-
band).
Agnes’s estate will be inherited by her sister. The half brother
receives nothing, being in a lower class of beneficiary.
a. Class Members Take Equally

A class of beneficiaries take equally between all members of
that class if they reach 18 or marry before that age.
EXAMPLE
Agnes dies intestate. She was unmarried, had no children, and
both her parents were dead. She is survived by her two sisters.
Agnes’s estate will be inherited by her sisters in equal shares.
NOTES 4.2 STATUTORY TRUSTS

‘Statutory trusts’ means that for all classes, other than
parents and grandparents, a class member’s issue takes
their parent’s share ‘per stirpes’ if the class member has
predeceased (provided the issue attain 18 or marry earlier).
Per stirpes means ‘through the root’, and this term is used
because children inherit through their parent’s share.
EXAMPLE
Simon dies without a valid will. He was divorced. He had three
children: Amy, Bob, and Claire. Amy and Bob survived Simon,
but Claire had died three years before. She had two children of
her own, Diana and Eva.
Simon’s estate will be divided as follows:
• One-third each to Amy and Bob; and
• One-sixth each to Diana and Eva (that is, they inherit Claire’s
share equally between them as her issue).
4.2.1 Potential Beneficiaries

When a potential beneficiary is living at the intestate’s death
but subsequently dies before attaining a vested interest (that
is, before attaining 18 or marrying earlier), their issue (if
any) take their deceased parent’s share on statutory trusts.
If the potential beneficiary dies without issue, the estate will
be administered as if that beneficiary had never existed.
EXAMPLE
Sachin died in a car accident. He was intestate and unmarried.
He had three children: Samira (25), Dillip (21), and Anjali (17).
Unfortunately, Anjali was involved in the accident and, although
she survived it, she died two weeks later, before reaching age 18.
In administering Sachin’s estate, Samira and Dillip will inherit it
equally.
4.3 ADOPTED CHILDREN NOTES

Adopted children are treated for intestacy as the children of
their adoptive parents and not of their natural parents. If an
adopted individual dies intestate without spouse or issue,
their estate will be distributed between the closest relatives
in the adoptive family. An adopted child may also inherit on
the intestacy of any member of their adoptive family.
4.4 ILLEGITIMATE CHILDREN

The intestacy rules apply regardless of whether or not an
individual’s parents were married to each other. However, if
a person dies intestate and their parents were never mar-
ried, the law presumes that their father has not survived the
deceased—unless there is evidence to the contrary or their
father was named on their birth certificate.
NOTES 5 PROPERTY PASSING OUTSIDE

THE WILL OR INTESTACY
Some property cannot pass via the testator’s will or the rules
of intestacy. These rules are strict and cannot be varied by
the terms of the will. The value of such assets can be signif-
icant, and knowledge of how such property passes is rele-
vant when advising on entitlement to property owned by
the deceased. The property listed below does not form part
of the deceased’s ‘succession estate’ for succession purposes
and so is not payable to their personal representatives.
5.1 PROPERTY OWNED AS BENEFICIAL

JOINT TENANT
The interest in property owned as a beneficial joint tenant
passes to the survivor(s). This could be a bank account or
the matrimonial home, for example. This rule does not ap-
ply for tenancies in common, where the share passes via the
will or intestacy rules.
EXAMPLE
Fred died recently. He owned several assets, including his interest
in the house he co-owned with his wife, Wilma. They owned
the property as joint tenants. Fred’s interest in the property does
not pass via his will but instead passes to Wilma by the right of
survivorship.
COMPARE
If Fred and Wilma were tenants in common, Fred’s share would
pass via the terms of his will (or intestacy if he has no valid will).
5.2 LIFE ASSURANCE POLICIES

Life assurance polices are held on trust for, or assigned to,
beneficiaries. Alternatively, a person insuring their own life
may express the policy to be for the benefit of their spouse

and/or children. In either scenario, the policy belongs to the
NOTES
beneficiaries and is payable directly to them (or trustees)
on proof of death. The proceeds will not form part of the
deceased’s taxable estate for inheritance tax purposes.
5.3 PENSION SCHEME DEATH BENEFITS

Pension scheme death benefits may be subject to discretion-
ary trusts, but the scheme member is normally permitted to
make a non-binding nomination of their preferred recipi-
ent. Not all pension schemes operate in this way; in some
cases the death in service benefit forms part of the estate for
the will or intestacy rules.
5.4 NOMINATED PROPERTY

A person may transfer property held on death in friendly
societies, the National Savings Bank, and National Sav-
ings Certificates directly to chosen beneficiaries by way of
statutory nomination in writing. If an individual has made
a nomination for such accounts, the institution will pay the
investment to the chosen nominee. The provisions apply to
deposits not exceeding £5,000.
5.5 LIFE INTERESTS IN TRUST PROPERTY

Interests in a trust fund will pass according to the terms of
the trust. These interests may be subject to inheritance tax.
EXAMPLE
Jolene died owning various assets in her own name. She was
also a beneficiary of a trust in which she had the right to receive
the income from the trust as it arose (a life interest). On Jolene’s
death, the trust assets will pass to the named capital beneficiary
(the ‘remainderman’) outside of Jolene’s estate.
NOTES 5.6 GIFTS WHERE DONOR HAS RECEIVED A

BENEFIT
This is an inheritance tax concept. The deceased has given
something away but has retained some benefit in the gifted
property. There is a tax consequence to this, but the asset
does not belong to the deceased for succession purposes.
EXAMPLE
Erasmus had owned his main residence for many years. In an
attempt to mitigate the inheritance tax liability, he transferred the
legal ownership of the house to his daughter, Jenna, but contin-
ued to live in it rent-free until the date of his death. Although the
gift will not be effective for inheritance tax and still forms part
of Erasmus’s taxable estate, from a succession point of view the
house passes outside his estate.
Exam Tip
It is worth noting that jointly owned property, life interests
in trust property, and gifts with reservation of benefit do
form part of the deceased’s estate for inheritance tax pur-
poses, even though they are not payable to the personal
representatives.
6 PERSONAL REPRESENTATIVES NOTES

The term ‘personal representatives’ (‘PRs’) is a collective
noun, encompassing both executors and administrators. We
will see administrators later in this outline.
6.1 APPOINTMENT
An executor is appointed by a will or codicil to ‘stand in the
shoes’ of the testator, administering their estate according
to the law and provisions of the will. An express provision
should be included in the main body of the will appointing
a named executor, or more than one if desired. The exec-
utor should be named in the will and not referred to by
description of their office; otherwise the appointment will
be void for uncertainty. Careful wording is required if the
testator wants to appoint a firm of solicitors as executors.
When appointing a sole executor, it is advisable to appoint
a substitute. This covers the situation of the first named
executor dying before the testator or being otherwise unable
or unwilling to act.
6.2 PERSONS WHO MAY BE EXECUTOR

Any person may be named as an executor, but it is sensible
for the testator to choose someone who will be both will-
ing and able to take up the position. Neither a minor nor a
person who lacks mental capacity will be granted probate.
Special executors may be desirable if the testator’s estate
includes a business or literary works.
6.2.1 Spouses as Executors

The testator will often appoint their spouse as executor
in their will. If the marriage is dissolved or annulled, the
appointment is ineffective because the former spouse is
treated as having died on the date of divorce or annulment.
A contrary intention may be included in the will.
NOTES 6.3 RENUNCIATION

No one can be forced to accept office as an executor. A
person named as executor is free to renounce their rights to
a grant of probate provided they have not accepted office.
As an alternative, an executor who does not wish to act in
the estate administration may have ‘power reserved’ (see
below). An executor accepts office—and so loses the right
to renounce—by taking a grant of probate or by ‘intermed-
dling’ in the estate, that is, doing something which shows
an intention to accept office. Even notifying the deceased’s
bank of the death could count as intermeddling.
A renunciation of executorship must be in writing, be signed
by the executor, and contain a statement that the person
has not intermeddled. It must be signed by a disinterested
witness. An executor cannot renounce part of the office—it
is an all-or-nothing position. The renunciation must be filed
at the Probate Registry, normally by the PRs who are apply-
ing for a grant. Once renounced, an executor cannot reclaim
title to probate unless the court allows them to do so. Execu-
tors who are also appointed as trustees will remain as trust-
ees despite renouncing the executorship. They would have to
disclaim the trusteeship if they wanted to not act as such.
EXAMPLE
“I do hereby declare that I have not intermeddled in the estate of
the deceased and will not hereafter intermeddle therein with the
intent of defrauding creditors, and I hereby renounce all my right
and title to the probate and execution of the said will”.
6.4 POWER RESERVED

Instead of renouncing, an executor who does not wish to
act in the administration of the estate can instead have
‘power reserved’. This means they will not be involved for
now, but if circumstances change—for example, another
executor falls ill or dies or changes their mind—they can
apply for a grant of probate at a later stage. There would be
no automatic substitution.
7 GRANTS OF REPRESENTATION NOTES

So far we have considered the distribution of an estate
whether under a will, via the rules of intestacy, or outside
either of those options. We now need to look at the law and
procedure for issuing a grant of representation. This is a court
document authorising the deceased’s PRs to deal with the
deceased’s estate and to transfer assets to the beneficiaries.
7.1 BACKGROUND
7.1.1 Courts with Jurisdiction
Most probate business is non-contentious and conducted in
the Family Division of the High Court—either in the Prin-
cipal Registry in London or in more local District Probate
Registries. It is normally convenient to use a local Registry,
but there is no requirement to do so. If contentious—in
other words, there is a dispute about whether a document is
admissible to probate or about who is entitled to a grant of
representation—the Chancery Division of the High Court
(or County Court if the estate is below £350,000) becomes
involved.
7.1.2 Non-Contentious Probate Rules

Non-contentious business is regulated by the Non-Conten-
tious Probate Rules (‘NCPR’). Note that, for amounts up to
£5,000 held in National Savings Bank accounts, National
Savings Certificates, Premium Savings Bonds, or building
societies, it may be possible to obtain payment by producing
just a death certificate. This is at the discretion of the institu-
tion concerned; the PRs cannot insist. Payment can be made
to the person appearing to be entitled to the grant or to be
beneficially entitled to the relevant asset. The legislation also
extends to, inter alia, service and emergency service mem-
bers’ pensions and civil servants’ salaries and pensions.
7.1.3 Chattels and Other Assets

Chattels such as furniture, jewellery, clothing, and cars can
normally be sold without the PRs having to prove they are
entitled to sell such items. All that is required for these

NOTES assets is production of the death certificate.
7.1.4 Solicitors’ Role

An application for a grant of representation can be made
by the personal representatives (‘PRs’) personally or via a
probate practitioner. If the PRs instruct solicitors, it is they
who are the solicitors’ clients.
7.2 TYPES OF GRANT

A grant of representation is a legal document that confirms
a person’s ability to administer the estate of the deceased.
A grant of representation is conclusive evidence as to the
terms and due execution of any will, or that the deceased
died intestate.
7.2.1 Probate
A grant of probate is obtained when the deceased leaves a
valid will. A grant of probate can only be made to executors,
who are usually expressly appointed by the will. If a firm of
solicitors is appointed, it is the partners at the date of the
will who are entitled to act (subject to contrary intention in
the will). One executor may obtain a grant of probate and
act alone (for example, a surviving spouse or civil partner).
A grant of probate cannot be issued to more than four
executors, but different parts of the estate (for example, the
testator’s business interests and the remainder of their es-
tate) can have different executors. Notice of the application
is normally given to any executors to whom power is being
reserved.
The will gives the executors the legal authority to deal with
the estate. The grant of probate confirms that authority. The
testator’s property vests in the executors on death. The grant
of probate (or at least an office copy of it) will usually need
to be produced as evidence of the executors’ authority to
act on behalf of the estate, and the grant is required to, for
instance, legally sell property owned in the estate’s name,
access bank accounts, transfer or sell shares, and so on.
7.2.2 Letters of Administration with Will Annexed

NOTES
An application for letters of administration with the will
annexed is usually made when there is a problem concern-
ing the appointment of the executors in the will. There
are several reasons why this type of grant may be needed,
including:
• The appointment of the executor in the will was not
correctly drafted;
• The will is valid, but the deceased did not appoint an
executor; or
• The executor died before the deceased, renounced, or is
unable (for example, being a minor or mentally incapa-
ble) or unwilling to act.
A grant of letters of administration with will annexed is also
needed if the estate is partially intestate—in other words,
the residue has not been effectively disposed of by the will.
A grant can be issued to a maximum of four administrators,
and no power can be reserved.
a. Order of Entitlement
The NCPR (rule 20) sets out the order of entitlement to a
grant in this situation:
(1) Executor (this only applies when part of the estate, the
residue, is intestate);
(2) Trustee of the residuary estate;
(3) Any other residuary beneficiary or anyone entitled to
a share in the undisposed of residue (where there is a
partial intestacy). Vested interests are preferred to con-
tingent ones;
(4) PRs of anyone in (3), other than a life tenant of the resi-
due;
(5) Any other beneficiary or a creditor; and
(6) PRs of anyone in (5) other than a life tenant.
Essentially, the residuary interest is treated as the principal

NOTES interest, regardless of its value.
EXAMPLE
Rose died, having made a valid will. However, her appointed
executor, Jean, had predeceased Rose, and Rose never got around
to updating her will accordingly. The will leaves £10,000 to her
cousin, Vince, and the remainder of her estate to her niece, Lesley.
Because she is a residuary beneficiary, Lesley is the person with
primary rights to apply for a grant of letters of administration
with will annexed.
b. Persons of Equal Rank

When there is more than one person of equal rank but one
has a vested interest and one has a contingent interest in
the estate, the court generally prefers an application by the
vested interest beneficiary.
EXAMPLE
Karim’s will leaves his residuary estate to his two children, Jasprit
and Imran, on their reaching age 25. There is no surviving execu-
tor and when Karim dies, Jasprit is 28 and Imran is 22.
The court would prefer an application by Jasprit, as Imran’s inter-
est is still contingent.
c. Special Situations
Note that when a gift in a will fails due to a beneficiary or
their spouse having witnessed the will, that beneficiary
loses their right to a grant under the list above as a named
beneficiary in the will. However, they can claim in a differ-
ent capacity, for example, as a person entitled on partial in-
testacy. A minimum of two administrators will be required
if there is a minor beneficiary or a life interest under a will.
EXAMPLES NOTES
1) In Oscar’s will, he left £100,000 in trust for his two children,
aged 12 and 10. Consequently, two administrators will have to
apply for a grant of representation.
2) Winston dies, leaving his estate to his wife Orla for life, re-
mainder to his three adult children. No executor is appointed.
Two administrators are required due to Orla’s life interest.
d. Renunciation
Anyone entitled to apply for a grant can renounce. In
contrast to executors, the right to renounce is not lost by
intermeddling in the estate.
e. ‘Clearing Off’
The person applying for a grant must ‘clear off ’ (in other
words, account for) those having a better right to the grant.
Clearing off was previously achieved by way of a statement
in the statement of truth made by the applicant. For ex-
ample, in clearing off executors, the applicant needed to
confirm that no executor was applying by showing that no
executors were appointed or that they were all dead or had
renounced. Now, clearing off is achieved through complet-
ing the relevant information in the application for a grant.
People in the same category as the person applying do not
need to be cleared off. So, if there is more than one person
in the same class entitled, then any one person in that class
may apply without giving notice to the others in that class.
If more than one person needs to apply, it may be neces-
sary to seek the additional person from a class of lower
priority.
EXAMPLES
1) The executors of Abraham’s estate have renounced probate.
The residue beneficiary, Yvonne, decides to apply for a grant of
representation. In her application, she will need to ‘clear off ’ the
named executors and confirm that they have so renounced.
2) The executors of Keith’s estate have renounced probate. The

NOTES residue of the estate is left to two beneficiaries, Michael and Peter,
in equal amounts. Peter can apply for a grant without needing to
give notice to—or clear off—Michael.
7.2.3 Letters of Administration

Letters of administration are required when the deceased
dies intestate (that is, without leaving a will) or when there
is a will but all the gifts have failed. This grant gives the
named personal representatives (‘administrators’) the legal
authority to administer the estate in accordance with the
statutory rules of intestacy. There is no authority from the
date of death. Only on issue of the grant does the deceased’s
property vest in the administrator (in the interim it vests
in the Public Trustee). An administrator (with or without
the will annexed) has very limited powers before a grant is
made.
a. Order of Entitlement
The order of entitlement broadly follows that as set out in
an intestacy (rule 22 of NCPR):
(1) Surviving spouse (or civil partner);
(2) Children of the deceased and the issue of any prede-
ceased child;
(3) Deceased’s parents;
(4) Deceased’s brothers and sisters of the whole blood (and
issue of predeceased);
(5) Deceased’s brothers and sisters of the half blood (and
issue of predeceased);
(6) Grandparents;
(7) Uncles and aunts of the whole blood (and issue of pre-
deceased);
(8) Uncles and aunts of the half blood (and issue of prede-
ceased);
(9) The Crown; and

NOTES
(10) A creditor of the deceased.
The PRs of a person have the same right to a grant as the
person whom they represent. However, the relatives listed
above (children through uncles and aunts of the half blood)
have priority over the PRs of a surviving spouse who has
died before obtaining a grant—unless the spouse was bene-
ficially entitled to the entire estate.
b. Special Cases with Children
In terms of children, no distinction is drawn between those
who were born to married parents, born to unmarried par-
ents, or adopted. Stepchildren are not included unless they
were adopted by the deceased.
c. Special Situations
Like letters of administration with will annexed, a mini-
mum of two administrators will be required if there is a mi-
nor beneficiary or a life interest under a will. A grant can be
issued to a maximum of four administrators, and no power
can be reserved.
d. Renunciation
Anyone entitled to apply for a grant can renounce their
right.
e. Clearing Off
The clearing off rules for an application for letters of admin-
istration with will annexed also apply to an application for
letters of administration. Those having a better right to a
grant must be cleared off by completing the relevant infor-
mation in the application for a grant, but those in the same
category do not need to be.
7.2.4 Grants de bonis non

A grant of administration de bonis non is a second grant
made to allow the completion of the administration of the
deceased’s estate following the death of the sole or last sur-
viving PR—or when a previous grant has been revoked. It
will be granted to the person who would have been entitled

NOTES had the original PR never taken the grant. No such second
grant is needed if one of several PRs has died or if a ‘chain
of representation’ exists. A chain of representation happens
when a sole or last surviving executor dies and that execu-
tor’s executor takes a grant of probate.
EXAMPLE
Felix dies appointing Elizabeth to be his executor. Elizabeth
proves the will but dies before completing the administration of
Felix’s estate. Elizabeth appointed Philip to be her executor. By
proving Elizabeth’s will, Philip automatically becomes the execu-
tor by representation of Felix and is able to complete the admin-
istration of Felix’s estate. It is not permissible for Philip to refuse
to be executor by representation of Felix’s estate.
Note that if Felix had died intestate, there would have been no
chain of representation in the event of Elizabeth’s death as an
administrator of Felix’s estate. A grant de bonis non would be
needed to complete the administration of Felix’s estate.
7.3 MINORS AND INCAPACITATED PERSONS

Minors cannot take a grant. If they are one of several execu-
tors or potential administrators, a grant is made to the adult
PRs with power being reserved to the minor in the case of
a grant of probate. If the minor is the only or last surviving
PR, a limited grant of letters of administration is made to
the minor’s parent or guardian for the use and benefit of the
minor until age 18. Similar rules apply when a PR is suffer-
ing from mental incapacity.
7.4 POWERS OF THE COURT

The court has discretion to make a grant to someone
other than the person who is prima facie entitled under
the NCPR—for example, if a potential PR is bankrupt or
in prison. The court can also remove an existing PR and
appoint a substitute.
8 PRE-GRANT PROCEDURE NOTES

It is important for a solicitor to conduct themselves with
sensitivity in what can often be a difficult time.
8.1 INFORMATION REQUIRED

Checklists are helpful to ensure information and documents
are correctly collected. The documents and information will
include:
• Full personal details of the deceased, family, depen-
dants, PRs, and beneficiaries;
• Details of assets and liabilities;
• Lifetime gifts in the seven years prior to the death;
• Death certificate;
• Original will and any codicils;
• Identifying the nature and extent of beneficiaries’ inter-
ests (including under intestacy rules, if relevant);
• Asset and liability paperwork;
• Details of any insurances;
• Immediate financial needs of any family members; and
• Details of funds that can be accessed without a grant,
for example, pension lump sum benefits, life assurance
policies in trust, and jointly owned bank accounts.
8.2 OTHER TASKS

Other tasks that may be required include:
• Registering the death (by sending a copy of the death
certificate or a letter certifying the death) with banks
and insurance companies, companies in which the de-
ceased owned shares, Her Majesty’s Revenue and Cus-
toms (‘HMRC’), and the deceased’s creditors;
• Obtaining valuations of assets, including using survey-

NOTES ors for land;
• Considering the validity of a will and possible claimants
against the estate;
• The will should: (1) be the last will of the testator,
(2) not be validly revoked, (3) be executed in ac-
cordance with the statutory will formalities, and (4)
contain an attestation clause which raises the pre-
sumption of ‘due execution’.
• Notifying beneficiaries of potential entitlements (sub-
ject to the will being admitted to probate and the satis-
faction of any liabilities); and
• Placing early advertising for unknown beneficiaries and
creditors (see later). Executors can do this from the date
of death, and administrators can do it from the date of
obtaining the grant. If the PRs are unsure as to what
notices should be given, they should apply to the court
for guidance.
8.3 FUNDING THE INHERITANCE TAX

LIABILITY
If inheritance tax (‘IHT’) is due, this must be paid by the
PRs to obtain the grant. This can be funded in the following
ways:
• Banks and building societies may release the deceased’s
account funds directly to HMRC to pay inheritance
tax before the grant is obtained. This direct payment
scheme is a voluntary one that banks and building so-
cieties may join. It can be a slow process. Funds may be
used to cover funeral expenses in a similar way.
• Bank loan—usually an undertaking has to be given by
the PRs and/or their solicitor to account to the lender
from the first proceeds of realisation of estate assets;
• Loan from a beneficiary;
• Sale of assets if no grant is needed prior to sale—for

example, chattels or quoted shares; and
NOTES
• Insurance policy payments—if the proceeds of life

assurance are payable to the estate, the insurance com-
pany may pay them directly to HMRC.
In exceptional cases, HMRC may allow the grant to be ob-
tained on credit if the PRs can demonstrate it is impossible
to pay the tax in advance.
8.3.1 Timing
As explained in the Tax Outline, inheritance tax on certain
assets can be paid in instalments. None of the tax on that
property is due until the expiry of six months from the end
of the month in which the deceased died, after which date
interest will start to be charged.
NOTES 9 APPLYING TO THE COURT

9.1 APPLICATION PROCESS
Online grant applications are now permissible for personal
applications by executors when there is a will or in limited
intestacy situations. At the time of writing, there is a trial
being run for online applications by probate professionals.
If registering online, originals of documents still need to
be physically sent to the Probate Registry. Probate practi-
tioners who are extracting the grant on behalf of clients are
now required to complete a practitioner version of the rele-
vant form (PA1) with effect from 18 May 2020. Prior to this
date, practitioners could use a more traditional paper-based
application process. Completed forms and other required
papers are sent to the relevant Probate Registry.
An application via the relevant probate form (see below)
should be supported by:
• The will (and codicils)—plus two copies (plus foreign
wills, if relevant);
• If a will has been accidentally destroyed or lost,
probate may be obtained of a copy of the will or a
reconstruction of it. An affidavit will be required to
support the application.
• An official copy of the death certificate;
• Further supporting documents—for example, affidavit
evidence, if required;
• The relevant inheritance tax form; and
• Payment for probate fees.
If all is in order, the grant is prepared and sealed by the
court. It is then sent, together with the number of office
copies requested on application, to the ‘extracting solicitor’
(that is, the solicitor who is acting for the PRs) usually with-
in 14 days of the application being lodged.
9.2 PROBATE APPLICATION FORMS PA1P NOTES

AND PA1A
There are two different forms used for probate applications
based on whether the deceased left a will. Form PA1P is
used when the application is for probate or administration
with will annexed. The PA1A form is used when there is no
will and it is therefore an administration case. Previously,
practitioners were not required to complete PA1 forms, but
this became mandatory from 18 May 2020.
9.2.1 Form PA1P—Probate Application When

Deceased Left a Will
Form PA1P is divided into the following sections:
a. Checklist
The first page contains a checklist of the documents re-
quired to accompany the application and records the num-
ber of official copies of the grant that are required along
with the appropriate fee.
b. Section A—Details of the Grant Applicants

This section provides details of the applicants for the grant.
The practitioner version includes a question about wheth-
er the applicant has a legal representative—meaning, an
authorised probate practitioner—acting for them. Details of
the probate practitioner have to be given.
A practitioner must verify the identification of the appli-
cant against a passport or driving license, and the name on
the application must be the same as that document. If, for
example, the will does not record the applicant’s full name,
then this must be stated on the form.
If there is a valid will but the named executors are unwilling
or unable to act and if there are beneficiaries under 18, a
minimum of two personal representatives or applicants are
required. In this situation, the application will be an admin-
istration with will annexed case.
c. Section B
NOTES
u Details of the Deceased
This section includes details of the deceased includ-
ing name, address, and dates of death and birth. This
section of the form should include any assets held in
any different names that the deceased may have been
known by, even if the alternate name is just a different
spelling or omission of a middle name. The grant will
need to include these alternative names. This section
then covers the domicile and marital status of the de-
ceased.
u Will and Codicils

This section includes details of the will and of any
codicils. It then requests details of all executors named
in the will who are not applying for the grant and an
explanation as to why not. The applicants are required
to specify that notice of the application has been given
to any executor with power reserved. Finally, the ap-
plicants must specify whether the will has been taken
apart for copying purposes and confirm that the will
has not been added to or had any pages removed. The
practitioner version asks if there are any features in the
will that the practitioner wishes to highlight.
u Details of Relatives of Deceased

This section includes details of the deceased’s family,
including issue, that have predeceased. The relationship
of each applicant to the deceased must be given.
u Applying as Attorney
An attorney applying on behalf of someone entitled to
take out the grant must give their details in this section.
u Foreign Domicile
This section of the form deals with the situation where
the deceased has a foreign domicile but has assets in
England and Wales.
u Inheritance Tax Summary

NOTES
This section will be completed based on the inheritance
tax (‘IHT’) form that is submitted and the records infor-
mation taken from those forms in relation to the value
of the estate. If an IHT summary was completed online,
the summary form is not needed with the application.
Instead, details of the gross and net estate are inserted, to-
gether with the IHT identifier (HMRC reference number).
d. Legal Statement
The final page to be completed, signed, and dated by the ap-
plicants is the legal statement. This statement confirms that
the applicants will: (1) deal with the estate in accordance
with the law, (2) keep account of the estate and distribu-
tions, and (3), if requested, provide the Probate Registry
with estate accounts and return the grant. The applicants
also confirm that they understand their legal obligations
for making truthful and honest returns. The legal statement
must be signed by all applicants listed in section A, section
1, or, if a probate practitioner is applying on their behalf, by
the probate practitioner.
9.2.2 Form PA1A—Probate Application When

Deceased Did Not Leave a Will
Form PA1A is very similar to Form PA1P above but does
not contain a section on wills. The main difference is that in
the section requiring details of the deceased’s relatives, more
information must be given than in Form PA1P because this
information may be required to determine who is entitled
to take out the grant. The applicant must have a beneficial
interest in the estate as a consequence of the intestacy rules,
and they must state their relationship to the deceased and
whether they are solely entitled to the estate or one of the
persons entitled to a share of the estate.
EXAMPLE
Anna dies intestate. She never married and is survived by her
father and brother.
Only Anna’s father can apply for the grant because he is solely
NOTES entitled to Anna’s estate under intestacy.
9.3 ADDITIONAL REQUIREMENTS

Sometimes, further evidence is required by the court before
issuing a grant. This may include:
• Evidence of due execution of the will—by, for example, a
witness (or someone else who was present at the signing)
via an affidavit of due execution—if the attestation clause
is absent or does not cover the particular circumstances;
• An affidavit confirming the deceased’s full name and
explaining that they signed the will in a shorter name;
• Evidence of knowledge and approval of the will’s con-
tents—again, if the attestation clause does not cover
this, then an affidavit may be required, normally by an
attesting witness (this may arise when the testator was
blind, illiterate, or frail or when there were suspicious
circumstances);
• Because unexecuted obliterations, interlineations, or
other alterations are presumed to be made after execu-
tion of the will and are therefore inadmissible, an affi-
davit is needed to confirm whether each such alteration
existed at the date of execution;
• Documents referred to in the will;
• An affidavit from a witness if there is uncertainty about
the date the will was executed; and
• If there was an attempted revocation, an affidavit of
‘plight and condition’ may be necessary. This includes
the situation where the presence of pin or stable marks
suggests revocation by a later will or codicil. The affida-
vit will confirm that the will is in the same plight and
condition as when it was found after the testator’s death
except for the marks or alterations that can be seen and
explained.
9.4 CAVEATS NOTES

A person can lodge a caveat with the Probate Registry to
prevent the issue of a grant of representation. The ‘cave-
ator’ might do this if they are a beneficiary and they believe
that the executor named in the will lacks mental capacity
to act or that the will is invalid. Caveats are valid for up to
six months. If the matter cannot be resolved, it may end up
with a judge determining the issue.
9.5 CITATIONS
9.5.1 Citation to Take Probate
A citation to take probate may be used when an executor
has lost their right to renounce probate by intermeddling in
the estate but has not applied for a grant and does not in-
tend to do so. Once cited by the Probate Registry, the execu-
tor must proceed with an application for a grant of probate.
If they still refuse to act, the citor can apply for a court order
allowing the executor to be passed over. A grant of letters of
administration with will annexed can then be applied for.
9.5.2 Citation to Accept or Refuse Grant

A citation to accept or refuse a grant is used to clear off a
person with a prior right to any type of grant who has not
applied, and shows no intention of applying, for a grant. If
the cited person does not take out a grant, a grant may be
issued to the citor. Alternatively, it may be easier and quick-
er to apply to the Probate Registry for an order passing over
an unwilling applicant in favour of someone else.
NOTES 10 DEALING WITH HER

MAJESTY’S REVENUE AND
CUSTOMS (‘HMRC’)
10.1 HMRC’S REQUIREMENTS
The PRs have to deliver an account to HMRC within 12
months from the end of the month of the deceased’s death.
In practice, this normally happens before then, as inter-
est on the inheritance tax due on the estate runs from six
months—and the PRs cannot obtain a grant until they have
paid the tax due. A solicitor acting for PRs needs to obtain
details of the deceased’s assets and liabilities. Valuations can
typically be obtained via correspondence with institutions
such as banks and insurance companies. Sometimes expert
assistance will be required from, for example, accountants
and surveyors to ascertain the open market value of assets
at the date of death. A solicitor should then calculate the
inheritance tax due. The completed account, all necessary
schedules, and payment should be sent to HMRC.
10.2 EXCEPTED ESTATES

An estate that owes no inheritance tax and does not have to
file a formal inheritance tax account is called an ‘excepted
estate’. The consequence of being an excepted estate is that
no formal account has to be filed unless HMRC request
one. The conditions for such an estate are:
• The deceased died domiciled in the UK;

• The estate comprises only property passing under the
will, by intestacy, or by survivorship or is settled proper-
ty (not exceeding £150,000) in which the deceased had
an interest in possession;
• Maximum £100,000 gross value of such property is
situated outside the UK;
• The only chargeable transfers in the seven years be-

fore death are ‘specified transfers’ that do not exceed
NOTES
£150,000 (ignoring business property relief and agricul-
tural property relief); and
• The total gross value (ignoring exemptions, reliefs, and
liabilities) of the estate, plus ‘specified transfers’ and
‘specified exempt transfers’ does not exceed either:
(1) The inheritance tax threshold (‘nil rate band’, pres-
ently £325,000), or
(2) £1 million, and the net chargeable estate (after de-
ducting liabilities and any spouse or charity exemption
on death) does not exceed the threshold.
The threshold can be increased to take account of the trans-
ferred nil rate band from a predeceased spouse or civil part-
ner but only if the deceased’s death happened on or after 6
April 2010 and, on the spouse or civil partner’s death, the
entire nil rate band was unused and therefore can be trans-
ferred. If any part of the nil rate band was used, nothing is
added for this purpose.
An estate falling within (1) above is known as a ‘small es-
tate’. An ‘exempt estate’ is one falling within (2) above.
‘Specified transfers’ are chargeable transfers consisting only
of cash, quoted shares, and/or an interest in land (unless
settled property or subject to a gift with reservation) made
in the seven years before death. ‘Specified exempt transfers’
include transfers between spouses and gifts to charities and
political parties made in the seven years before death.
10.2.1 Estates Using Transferable Nil Rate Band

An estate that can benefit from the transferable nil rate
band from a predeceased spouse or civil partner may
qualify as an excepted estate. An estate that uses the
transferable nil rate band can be an excepted estate only
if: (1) the estate value is less than twice the inheritance
tax threshold (presently £650,000) and (2) 100% (not any
lower amount) of the unused inheritance tax allowance
from a late spouse or civil partner can be transferred to

NOTES the deceased. Other conditions include that the spouse’s
estate did not qualify for any agricultural or business
relief (see Tax Outline).
EXAMPLE
Gwen died in March 2020. Her assets were worth £520,000, and
she had debts of £40,000. Her will leaves everything equally to
her two nephews. She had made lifetime gifts of £80,000 to her
nephews in June 2016. Gwen’s civil partner, Hannah, died in
December 2018 and left her entire estate to Gwen.
This is a ‘small’ excepted estate. The aggregate of Gwen’s gross es-
tate (£520,000) plus her specified transfers (£80,000) is £600,000,
which is below the nil rate band threshold of £650,000. The
threshold is increased by 100% from £325,000 as Hannah did not
use any of her nil rate band on her death due to the spouse/civil
partner exemption.
COMPARE
Jason died recently. His gross estate was valued at £900,000. He
had debts of £300,000. His will leaves his estate to be split two-
thirds to his wife, one-third to his daughter. Jason had made a
lifetime transfer of £120,000 to his daughter three years earlier.
This is not an ‘exempt’ excepted estate. Although the net charge-
able estate (£900,000 - £300,000 debts - £400,000 spouse exemp-
tion + £120,000 specified transfer) is below £325,000, the gross
value of the estate (£900,000) plus specified transfers (£120,000)
is greater than £1 million.
COMPARE
Arabella and Ben were married. Ben died, leaving £20,000 to his
friend and the rest of his estate to Arabella. At the time Ben died
the nil rate band was £200,000, so Ben’s estate used 10% of the
nil rate band. Years later, Arabella dies when the nil rate band is
£325,000.
Arabella is able to use her own £325,000 nil rate band plus the
additional 90% that Ben did not use. We use the current nil rate NOTES
band when calculating the percentage, so Arabella is due 90% of
£325,000, or £292,500. Her total nil rate band is £617,500. This
means Arabella’s estate will have to pay inheritance tax if the
estate’s value exceeds £617,500. However, because Arabella is not
able to use 100% of Ben’s nil rate band, Arabella’s estate does not
qualify as an excepted estate—regardless of whether the estate
owes inheritance tax.
10.2.2 Non-UK Domiciliaries

The estate of a deceased who was non-UK domiciled is
excepted if their UK estate consists solely of cash and/or
quoted shares which do not total more than £150,000.
NOTES 11 DUTIES OF PERSONAL

REPRESENTATIVES
11.1 DUTY TO COLLECT THE DECEASED’S
ASSETS
Within a reasonable time, the PRs must collect the monies
due and other assets of the deceased which vest in them.
Ordinarily, they will need to produce the grant of represen-
tation to the relevant persons to be able to deal with such
assets. The PRs will only be liable for loss resulting from
their unreasonable conduct. Note that the duty to collect
the deceased’s assets only relates to property which devolves
on the PRs, not to assets which pass directly to beneficia-
ries.
11.2 DUTY TO ADMINISTER THE ESTATE

Reasonable steps must be taken to preserve the deceased’s
estate (within the ‘executor’s year’ of 12 months) and realise
any investments which it is not proper for them to retain.
PRs then pay off debts and legacies and then distribute the
residue per the will or intestacy rules.
11.3 DUTY OF CARE—TRUSTEE ACT 2000

The Trustee Act 2000 applies to PRs as well as trustees. Sec-
tion 1 requires that PRs act with reasonable care and skill,
taking account of any specialist knowledge or experience,
or what is reasonably expected of them if professional PRs.
This is additional to the fundamental duties to act in the
best interest of beneficiaries and to comply with the terms
of any trust imposed.
11.3.1 Liability for Breach of Duty of Care

Typically, a will excludes PRs’ liability for breach of this
duty of care. If not, the PRs may be liable to the benefi-
ciaries or creditors for losses arising from their breach of
duty—for example, from misappropriation of assets, malad-

ministration, or negligence. A PR is not liable for loss from
NOTES
a fellow PR’s breach of duty unless negligence is an issue.
The court can, at its discretion, relieve a PR from liability
for breach of duty if it is satisfied that the PR “has acted
honestly and reasonably and ought fairly to be excused for
the breach”.
NOTES 12 ADMINISTRATIVE POWERS OF

PERSONAL REPRESENTATIVES
12.1 PERSONAL REPRESENTATIVES’
POWERS
Various statutory powers are given to PRs, although
many may be modified—and additional powers may be
given—by express provision in a will. These include the
following.
12.1.1 Power to Sell, Mortgage, or Lease

The power to sell, mortgage, or lease estate property helps
pay various administration expenses (tax, funeral costs,
debts, pecuniary legacies).
12.1.2 Power to Appropriate

Appropriation is the use of an asset to satisfy a legacy or
interest in the estate, provided the beneficiary consents
(unless the will provides otherwise, which is common) and
no specific beneficiary is affected. It is not permissible for a
PR to make an appropriation in their own favour to satisfy
a pecuniary legacy, unless the asset used to do so is cash or
the equivalent of cash (for example, government stocks or
quoted share)—unless permitted by the will.
EXAMPLE
A will leaves £5,000 to a beneficiary. The estate is low on cash
but has other assets, including a valuable jewellery collection
that the testator did not leave to any specific beneficiaries.
One item in the collection is an emerald necklace worth
£5,000. The PR can use the power of appropriation to give the
necklace to the beneficiary instead of the £5,000 in cash. Un-
less the will provides otherwise, the beneficiary must consent
to the appropriation.
12.1.3 Power to Accept Receipts for a Minor’s

NOTES
Property
A minor is unable to give a valid receipt for monies or assets
transferred to them. PRs can appoint trustees for a minor
if the minor has a vested interest in the property. Note that
there is a view that anyone with parental responsibility for
the minor can give a valid receipt. The simplest way to deal
with any uncertainty is to have an express clause in the
will providing for parental receipts and/or minors giving
receipts from age 16. Contingent gifts cannot be paid out
early.
12.1.4 Power to Insure

Trust property can be insured against any risks to the full
value of the property. Any insurance monies received are
held as capital and used to reinstate the lost or damaged
property.
12.1.5 Power to Delegate

PRs can delegate functions to agents on such terms as they
determine. Unless covered in the will, PRs must review
arrangements with agents. They are only liable for the act or
default of an agent if they failed to adhere to their statutory
duty of care in appointing or reviewing the agent.
12.1.6 Power to Indemnify for Expenses

PRs may reimburse themselves for all properly incurred
expenses.
12.1.7 Power to Run the Deceased’s Business

The general rule is that PRs have no authority to carry on
the deceased’s sole trade unless they do so to sell it as a
going concern. The will may include express provisions for
running the deceased’s business as a going concern. For
partnerships, the partnership agreement must be consulted.
If the deceased was a shareholder, the company’s articles of
association should be reviewed.
12.1.8 Power to Invest

NOTES
The Trustee Act 2000, which applies to PRs, authorises
trustees to make any kind of investment that they could
make if they were absolutely entitled to assets of the trust.
This general power expressly excludes investments in land
other than by way of loan. However, the legislation then
goes on to permit acquisition of freehold or leasehold land
for investment, for occupation by a beneficiary, or for any
other reason. However, this does not include the purchase
of land abroad nor the purchase of an interest in land with
someone else (for example, a beneficiary). The will may
contain express powers regarding repair, improvement, and
maintenance of property. A testator may wish to restrict
investment powers in the will, for example, by prohibiting
unethical investments.
a. Standard Investment Criteria
Regard must be had to the ‘standard investment criteria’,
which are:
• The suitability to the trust of the investment; and
• The need for diversification of the trust’s investments.
PRs must obtain and consider proper advice by qualified
persons on proposed and existing investments.
12.1.9 Power to Maintain a Minor

Section 31 Trustee Act 1925 provides that when property is
held for a minor beneficiary and the gift carries the right to
intermediate income, the trustees may apply the income for
the maintenance, education, or benefit of the minor. Other-
wise, the trustees must accumulate the income. This pro-
vision applies whether the interest is vested or contingent.
Once the beneficiary is 18, the accumulated income is nor-
mally added to capital (but it will be paid out to a beneficia-
ry who obtains a life interest at age 18). If the minor reaches
18, ongoing income thereafter must be paid to them until
their contingent interest is satisfied (when they will receive
the capital plus accumulated income). Note that an express
will provision may override or amend section 31.
EXAMPLE NOTES
A clause in the will might state:
“Section 31 of the Trustee Act 1925 shall apply as if the age of 21
years were substituted for all references to the age of 18 wherever
they occur in section 31 (references to ‘infancy’ being construed
accordingly)”.
This would give the trustees discretion to accumulate income (if
not used) until the beneficiary is age 21.
12.1.10 Power to Advance Capital

Section 32 Trustee Act 1925 allows trustees discretion to
advance capital to a beneficiary (minor or not) who has a
vested or contingent interest in capital. The entire vested or
presumptive share may be advanced—although any prior
life interest beneficiary must give their consent. Any ad-
vance is brought into account on an absolute entitlement
arising (unless the will specifies otherwise). If an advance
is made before a beneficiary satisfies a contingency, the
amount so advanced is not recoverable. Once more, the will
may vary the terms of the statute.
12.2 EXERCISE OF PERSONAL

REPRESENTATIVES’ POWERS
A sole PR has the same powers as two or more and thus can
give a valid receipt for the proceeds of sale of land. Joint
PRs have joint and several authority, so the act of one binds
all others and the estate. However, all PRs must join for the
transfer of land and shares. PRs’ powers are fiduciary and
must therefore be exercised in good faith in the interest of
the estate as a whole.
NOTES 13 PROTECTION OF PERSONAL

REPRESENTATIVES
13.1 CLAIMS OF UNKNOWN BENEFICIARIES
OR CREDITORS
PRs are personally liable to any unpaid beneficiary or cred-
itor, even if not known when a distribution is made, unless
they comply with s27 Trustee Act 1925. Under the Act, PRs
can protect themselves from liability by placing adverts in
the London Gazette, a local newspaper (local to the area
in which any land forming part of the estate is situated),
and any other appropriate newspaper (for example, a trade
journal in a situation where the deceased had run a busi-
ness), requesting any person interested to contact the PRs’
solicitor within a minimum of two months. PRs should
also conduct searches for land held for creditors and for
bankruptcy declarations against the deceased and beneficia-
ries (to protect against the trustee in bankruptcy).
13.2 CLAIMS OF MISSING BENEFICIARIES

OR CREDITORS
If the PRs cannot find a known beneficiary or creditor, they
have the following options:
• Make the payment owed to the beneficiary or creditor
into the court and distribute the rest of the estate.
• Distribute everything with an indemnity from the ben-
eficiaries (but this carries some risk for the PRs as the
indemnity may prove to be worthless if the beneficiary
who gave it has no funds).
• Seek a Benjamin Order. This is a court order giving
PRs leave to distribute the estate based on an assump-
tion set out in the order (for example, that the missing
beneficiary should be treated as having died before the
deceased). Full enquiries are first required for this. This
gives full protection for the PRs.
• Purchase insurance against the risk of a missing claim-

ant appearing. Full enquiries may be required first. This
NOTES
is likely to be cheaper and quicker than applying to
court.
If the PRs fail to adopt one of the above options, they re-
main potentially liable to a later claim by a missing ben-
eficiary or creditor. However, they will be protected from
claims made by unknown creditors and beneficiaries if they
have acted as outlined in 13.1 above.
13.3 OTHER PROTECTIONS FOR THE

PERSONAL REPRESENTATIVES
13.3.1 Claims for Financial Provision
Under the Inheritance (Provision for Family and De-
pendants) Act 1975, a person may apply to the court to
set aside the terms of a will or vary an intestacy on the
grounds that reasonable financial provision has not been
made for them. (See Chapter 21.) To protect themselves
from a financial provision claim, the PRs should wait to
distribute the estate until six months have passed from the
issue of the grant.
13.3.2 Future and Contingent Liabilities

Future and contingent liabilities include situations in which
the deceased had acted as a guarantor on a loan or there is a
possibility of legal proceedings against the estate. To protect
themselves from future and contingent liabilities, PRs have
the following options:
• Estimate and set aside an appropriate amount (though
this is unsatisfactory for the PRs);
• Seek indemnity from the beneficiaries (but this carries a
risk);
• Arrange insurance and distribute the entire estate; or
• Apply to the court for directions as to what to do.
13.3.3 Failed Potentially Exempt Transfers or

NOTES
Chargeable Lifetime Transfers
Liability for failed potentially exempt transfers or charge-
able lifetime transfers by the deceased can arise if the
inheritance tax due is still unpaid after 12 months. HMRC
will not pursue the PRs for these liabilities if they remain
unpaid by the recipient(s), if the PRs have made fullest en-
quiries and have obtained a certificate of discharge.
14 COLLECTING AND REALISING NOTES

ASSETS
14.1 IN GENERAL
The PRs’ priority should be to realise sufficient funds to pay
off any loan taken out by the PRs to cover the estate inher-
itance tax liability. Unsecured debts owed to the deceased
should be collected as soon as possible, taking legal action
if required. The PRs have wide powers to settle claims made
by or against the estate. Generally, causes of action vested
in the deceased at the date of death survive for the benefit
of the estate (the same applies for actions against the de-
ceased). The PRs may have an action to recover damages
on behalf of dependants of the deceased if the deceased
was killed by a wrongful act. Any damages recovered do
not form part of the estate. The PRs have no obligation—or
power—to deal with assets passing outside the will or intes-
tacy.
14.1.1 Practical Considerations

Official office copies of the grant should be used when deal-
ing with institutions over the estate. Photocopies are not
acceptable evidence.
14.2 SALE OF ASSETS

In deciding to sell assets, reference should be made to the
will and beneficiaries’ wishes. For example, any proper-
ty specifically gifted in the will should not be sold unless
other assets have been exhausted. A beneficiary may have
expressed a wish to receive a particular asset to satisfy a
pecuniary legacy or as their share of the residue.
14.2.1 Tax Considerations

The tax implications of disposals are another consideration,
both for inheritance tax loss on sale reliefs and any potential
capital gains tax (‘CGT’) liability. If capital losses are made,
these can be offset against capital gains made by the PRs.
If there are no capital losses, alternative strategies may be

NOTES needed. If an asset is vested in a beneficiary, the beneficia-
ry acquires it at the date of death. This is not a chargeable
event under the tax laws.
14.3 PAYMENT OF DEBTS—SOLVENT ESTATE

A solvent estate is one where the reasonable funeral, tes-
tamentary, and administration expenses, debts, and other
liabilities can be paid in full. Testamentary and administra-
tion expenses include inheritance tax payable on death on
property which vests in the PRs and the costs of obtaining
the grant, collecting in and preserving the deceased’s assets,
and administering the deceased’s estate. Whether the lega-
cies under the will can be satisfied in full is irrelevant.
14.3.1 Secured Debts

A secured debt (for example, a mortgage on a property)
should be discharged from the property against which it
is secured—subject to the testator showing any contrary
intention in the will.
14.3.2 Unsecured Debts

Unsecured creditors should be paid from the estate’s assets
in the following order:
• Property undisposed of by the will (for example, in a
partial intestacy); and
• Residue.
The residue normally suffices to pay the creditors. Both
of these categories can be subject to a fund set aside from
which to pay pecuniary legacies.
14.3.3 When Debts Cannot Be Paid from Residue

There are further legislative provisions if the deceased has
exonerated the residue in their will from paying such debts.
We then look for:
• Property specifically given for the payment of debts;
• Property specifically charged with the payment of

debts—this occurs when the testator has directed what
NOTES
happens to any surplus arising after using such assets;
• The pecuniary legacy fund—unless the testator has
specified otherwise, such legacies will abate proportion-
ately so that each legatee bears a share of the burden of
payment; and
• Property specifically devised or bequeathed, rateably
according to the property’s value.
14.3.4 Marshalling
The doctrine of ‘marshalling’ can be invoked by a disap-
pointed beneficiary (that is, one whose legacy is used by
the PRs to pay a debt when the legacy is within a catego-
ry which is not, as between the beneficiaries, liable to the
burden of that debt). The disappointed beneficiary will be
compensated from the residue for their loss.
14.3.5 Contrary Will Provisions

The above rules can be set aside by contrary provision in
the will—for example, a gift of residue “subject to” or “after”
payment of debts. Similarly, a testator might make a gift
of residue on trust for sale with a direction for payment of
debts out of the proceeds (before division amongst the ben-
eficiaries). In such instances, the residue as a whole is liable
for payment of the debts. A gift of a property “free of mort-
gage” will mean the liability is payable out of the residue.
14.4 PAYMENT OF DEBTS—INSOLVENT

ESTATE
An insolvent estate is one that has insufficient assets to pay
expenses, debts, and liabilities in full. The beneficiaries will
receive nothing. Secured creditors enjoy priority over unse-
cured creditors. The PRs must pay the unsecured creditors
in the correct order. If they do so, the PRs will be protected
from a claim, provided they have acted in good faith and
not preferred one creditor over another in the same catego-

NOTES ry. The prescribed order is as follows:
• Reasonable funeral and administration expenses;
• Preferred debts—wages and salaries of the deceased’s
employees in the four months prior to death, up to a
maximum of £800 each;
• Ordinary debts—including money owed to HMRC and
the balance of preferred debts;
• Interest on preferred and ordinary debts; and
• Deferred debts—that is, loans from the deceased’s
spouse.
Each creditor ranks equally within a category, and they
abate proportionately.
14.5 PROTECTION OF THE PERSONAL

REPRESENTATIVES
If PRs pay a category of debt, knowing that there are high-
er ranking debts, the payment is an implied warranty that
there are sufficient assets to meet all the higher level debts
of which they have notice. If there are not sufficient assets,
the PRs are personally liable. However, PRs are not liable
if they paid an inferior debt without notice of a debt in a
higher category, provided they did not do so with undue
haste.
PRs must not prefer one creditor over another in the same
category. However, they are protected if payment to a cred-
itor in one class was made in full before payment to others,
and the estate later turns out to be insolvent. To be protect-
ed from liability, the PRs must have been acting in good
faith at the time and with no reason to believe the estate
was insolvent.
396
15 POST-DEATH CHANGES NOTES

Sometimes the distribution of an estate, either via a will or
the rules of intestacy, is not satisfactory or suitable. This
may be due to inadequate provision for certain benefi-
ciaries, beneficiaries who do not want the property left to
them, or wasted tax-saving opportunities. There are two
methods by which changes can be made to the dispositions
of an estate after the deceased’s death.
15.1 DISCLAIMERS
A beneficiary may disclaim an inheritance orally or in
writing—unless they accepted any benefit from the gift. The
disclaimer must be in writing, however, to be effective for
inheritance tax and capital gains tax. The effect is normally
that the disclaimed gift falls into the residue or into partial
intestacy if it is the residue. A disclaimer of a gift under a
will does not prevent the person disclaiming from receiving
the property under the intestacy rules. The disadvantage of
a disclaimer is that the original beneficiary has no control
over the ultimate destination of the gift. For this reason a
variation is often used.
15.2 VARIATIONS
A variation allows a beneficiary to change who receives
their inheritance. The original beneficiary controls to whom
the gift is transferred. Ordinarily, a variation will be a trans-
fer of value for inheritance tax and a deemed disposal for
capital gains tax by the original beneficiary. To be effective
for inheritance tax and for capital gains tax (that is, to be
read back to the date of death as if the deceased had left
the asset(s) to the new beneficiary), the variation must be
in writing, made within two years of death, and not made
for monetary consideration. Furthermore, it must contain
the required statements. The PRs must sign the election if
the inheritance tax liability increases. Unlike a disclaimer, a
partial variation is possible. Also, a variation can be made
even if the original beneficiary has accepted a benefit.
NOTES 16 PAYMENT OF LEGACIES

Having paid off the debts of the deceased, plus funeral and
other administrative expenses, the PRs can give effect to the
various gifts made by the will.
16.1 SPECIFIC LEGACIES AND DEVISES

The methods the PRs must use to vest such gifts in the
beneficiaries vary depending on the type of property being
transferred. The procedures are as follows:
• Chattels—Transfer is achieved by delivery, in return for
a receipt. Insurance should be cancelled.
• Company shares—A stock transfer form should be
completed and sent with an office copy of the grant and
the share certificate.
• Land—Transfer requires an assent in writing. Insurance
should be cancelled. The beneficiary needs to register
their interest at HM Land Registry.
Any costs of transfer are born by the beneficiary unless the
will says otherwise. The beneficiaries are entitled to income
arising since the deceased’s death.
16.2 PECUNIARY LEGACIES

The will usually states the source from which pecuniary leg-
acies should be paid—it is normally the residue. In practice,
the procedure used for payment of unsecured debts is also
used for paying pecuniary legacies. For example, the resi-
due may be left “subject to” or “after payment of ” the “debts
and legacies”, or on trust for sale with payment out of the
proceeds of “debts and legacies” before division.
16.3 ABATEMENT
Abatement of debts and legacies is a common law doctrine
of wills that holds that when the assets of a deceased person
are not sufficient to satisfy fully all the creditors, their debts
must abate (or reduce) proportionately, and the creditor
NOTES
must accept a lower value in satisfaction of the debt. In the
case of legacies, when the funds or assets out of which they
are payable are not sufficient to pay them in full, the legacies
abate in proportion—unless there is a priority given spe-
cially to any particular legacy. Annuities are also subject to
the same rule as general legacies. If the fund to pay pecuni-
ary legacies is insufficient, the legacies will abate (reduce)
proportionately.
16.4 APPROPRIATION
A beneficiary can ask the PRs to use a particular asset to
satisfy a pecuniary legacy. This is ‘appropriation’, as ex-
plained in 12.1.
16.5 RECEIPTS
The PRs will typically obtain a receipt from a beneficiary
to prove they have satisfied their obligations. Minors (indi-
viduals under age 18) cannot give a good receipt unless the
will specifies otherwise. In such cases, unless the PRs accept
the alternative view that anyone with parental responsibility
for the child can give a receipt, the PRs have the following
options:
• Hold the property until the child reaches age 18;
• Use the power of appropriation, with the minor’s par-
ent or guardian or the court giving any consent (this
negates the need to retain the asset(s) until the child
reaches 18 and can save capital gains tax overall);
• Appoint trustees to receive and hold the property until
the child attains age 18; or
• Obtain their discharge by payment of the legacy into
court.
NOTES 17 ASCERTAINING THE RESIDUE

After paying debts and legacies, the PRs have to determine
the residue to be distributed after taking account of the
following issues.
17.1 TAX ISSUES

The PRs must take into account the income tax and capital
gains tax of both the deceased and the administration pe-
riod. If the PRs paid inheritance tax that should have been
paid by the beneficiary of a gift (either because of the will’s
terms or because property passed to, for example, a surviv-
ing joint tenant), the PRs need to withhold the tax due or
ensure they will be reimbursed.
If a pecuniary legacy is made “subject to tax”, the PRs with-
hold the tax and pay the net legacy to the tenant. Succession
law generally assumes that a specific gift of UK property is
deemed to be “free of tax”, unless the will states otherwise.
The reverse is true in relation to gifts of overseas assets. In
any event, the PRs should ensure the tax is taken care of
before vesting assets in beneficiaries. This includes retaining
funds to pay future instalments of inheritance tax. In the
worst case scenario, they may have to sue for any tax due.
17.1.1 Corrective Accounts

A corrective account is filed when the incorrect amount
of inheritance tax was initially paid. If there is a change in
inheritance tax due, the residue will be affected.
17.1.2 Certificate of Discharge

The PRs should obtain a Certificate of Discharge from
HMRC, which avoids further inheritance tax liability. The
Certificate is an effective discharge, except where there is
fraud, a failure to disclose material facts, subsequent discov-
ery of further assets, or changes in the inheritance tax liabil-
ity due to a variation. HMRC will issue a limited Certificate
if the PRs have to pay future instalments of inheritance tax
due to the PRs claiming the instalment option on qualifying
property. No Certificate is required for an excepted estate.
There is an automatic discharge 35 days after a grant of rep-

resentation unless circumstances change.
NOTES
17.2 REASONABLE FUNERAL EXPENSES

The estate must pay reasonable funeral expenses. The
reasonableness of expenses is a question of fact, taking into
account various factors concerning the deceased.
17.3 LEGAL AND PROFESSIONAL COSTS

The estate may owe legal and other professionals’ (for exam-
ple, surveyors) costs in administering the estate. A solicitor’s
charges in non-contentious probate matters must be fair
and reasonable in the circumstances, taking account of fac-
tors such as complexity, time spent, the value of the estate,
and the number and importance of documents involved.
17.4 PERSONAL REPRESENTATIVES’

REMUNERATION
PRs are not entitled to charge for services unless authorised
in some way:
• Legacy to proving executors—It is presumed that any
specific or general legacy (but not the residue) to an
appointed executor is conditional upon them accepting
office. This presumption can be rebutted by a clause in
the will.
• Express charging clauses are routinely included in the
will for professional PRs. These typically cover sole pro-
fessional trustees and also remove the need for the other
trustees’ agreement to payment when the professional is
one of several trustees.
• Agreement with beneficiaries—PRs can be paid out
of assets to which the beneficiaries are entitled if the
beneficiaries agree.
• The court can authorise remuneration for PRs for past,
present, or future services.
NOTES 18 ESTATE ACCOUNTS

Estate accounts are important to show the residuary bene-
ficiaries what is available to them. There are no prescribed
formats, but, if not combined in one account, the estate
accounts often comprise these three accounts (accompanied
by a commentary):
• Income account;
• Capital account; and
• Distribution account.
Separate income and capital accounts are required if there
is a life interest in the residue. Income that relates to the
period before death but is received post-death will be added
to the capital account; the post-death income will be appor-
tioned to the income account.
18.1 COMMENTARY
A commentary is a document that accompanies the estate
accounts. The commentary is there to assist the beneficia-
ries and: (1) identifies the gross and net values of the estate;
(2) indicates the estate’s disposition; and (3) deals with any
other relevant matters, such as interim distributions and
distributions in specie.
18.2 INCOME ACCOUNT

The income account should:
• Provide details of income receipts;

• Itemise details of expenditure from income (for exam-
ple, income tax, interest paid on legacies); and
• Show the net amount to be distributed.
18.3 CAPITAL ACCOUNT NOTES

The capital account should:
• Itemise all assets at probate value;
• Show any sales by the PRs;
• Provide details of all liabilities discharged, pecuniary
and specific legacies and expenses paid, including all
taxes; and
• Show the balance available for distribution.
18.4 DISTRIBUTION ACCOUNT

The distribution account’s purpose is to show how the ben-
eficiary’s entitlement is to be met. The account will include
interim distributions.
18.5 DISCHARGE
The PRs usually endorse the accounts to indicate their
approval. The accounts are then sent to the residuary ben-
eficiaries for them to endorse—and for them to formally
discharge the PRs with an agreement to indemnify them
against all claims and demands. If a beneficiary refuses to
approve the accounts, the PRs may ask the court to approve
them or may pay the beneficiary’s share into court.
18.5.1 Minor or Mentally Incapable Beneficiaries

Difficulties may arise when there are minor or mentally
incapable beneficiaries. In the case of minors, the solution
may be the appointment of trustees who retain the assets
until the beneficiary reaches 18. If the interest of the minor
is contingent, the PRs will have to hold the assets until the
beneficiary reaches 18. For mentally disabled beneficiaries,
the PRs should inform any deputy appointed by the Court
of Protection and proceed as instructed by the court. Other-
wise, the PRs may have to make payments into court.
NOTES 19 ASSENTS
An assent occurs when the PRs acknowledge that they do
not require an asset for the purposes of administration and
transfer it to a beneficiary. An assent relates back to the date
of death, so the beneficiary is entitled to rents and other
income from that date.
19.1 REQUIREMENTS
An assent must be in writing, be signed by the PRs, and
name the person in whose favour it is given. The writing is
needed even if the PR is the beneficiary. The assent operates
to vest the legal estate in the named person.
19.1.1 PRs Holding Property in Different Capacity

If the PRs are to continue to hold property in a different ca-
pacity as trustees under trusts arising via the will, or under
intestacy law, an assent is needed to formally vest the legal
estate in themselves as trustees to hold for the beneficiaries.
19.2 LAND
If the asset is land, there is a requirement to ensure that
unregistered land is subject to first registration. If the land
is registered, two options are available to the PRs:
• They can apply to be registered as the owner in place
of the deceased, producing the grant when making the
application, or
• They can transfer the property by assent to a beneficiary
who will then apply to be the registered owner, submit-
ting a certified copy of the grant.
19.3 PROTECTION FOR PURCHASERS

Traditionally, a memorandum of the assent is endorsed on
the original grant. Purchasers are given protection when
buying land from PRs or from beneficiaries who have been

given an assent. When buying from PRs, a purchaser should
NOTES
insist on a statement in the conveyance that no previous as-
sent has been made. This protects the purchaser unless they
had notice to the contrary. If buying from a beneficiary, an
assent in their favour from PRs is sufficient evidence that
the seller is the person entitled to the legal estate. Again,
this protects the purchaser unless they knew the assent was
given to the wrong person.
NOTES 20 BENEFICIARIES’ RIGHTS AND

REMEDIES
20.1 RIGHTS
A beneficiary has a chose in action—the right to have the
deceased’s estate properly administered—until it is complet-
ed. Until that time, they have no legal or equitable interest
in the deceased’s assets. Specific gift recipients have the
right to income accruing from death, and residuary benefi-
ciaries have the right to intermediate income whether their
interest is immediate or contingent. Contingent pecuniary
legacies do not carry a right to income unless the gift is to a
child with entitlement at age 18. These income rules can be
overridden in the will.
20.2 REMEDIES
When difficulties arise in administration of the estate, ben-
eficiaries’ options include administration proceedings and
actions to ‘recover loss’ suffered. Administration proceed-
ings are designed to ensure that the estate administration
is properly conducted. Actions to ‘recover loss’ suffered
include the following.
20.2.1 Personal Action Against the PRs

A beneficiary may bring a personal action against the PRs.
However, PRs may be absolved under the will if they acted
“honestly, reasonably, and ought fairly to be excused” or by
agreement with the beneficiaries.
20.2.2 Tracing
The beneficiaries have the right to trace and recover prop-
erty of the estate (or property representing such property)
from the PRs or any other recipient of it. This right is lost
against a bona fide purchaser or if inequitable to do so.
20.2.3 Other Personal Actions

A beneficiary may bring a personal action against persons
who have wrongly received estate assets.
21 CLAIMS AGAINST ESTATES NOTES

UNDER INHERITANCE
(PROVISION FOR FAMILY AND
DEPENDANTS) ACT 1975
Under English law, testators may dispose of the whole of
their estate under their will as they think fit. They are said
to enjoy freedom of testation. There is no requirement that
they must leave part of their estate to their children, for
example.
Under the Inheritance (Provision for Family and Depen-
dants) Act 1975 (‘the 1975 Act’), as amended, an application
for family provision claim may be made to the court to set
aside the terms of a will (or vary an intestacy) of a person
who died domiciled in England and Wales on the grounds
that reasonable financial provision has not been made for
the applicant. In some circumstances a family provision
claim may be made against a person who was not domiciled
in England and Wales if the deceased left property and fam-
ily members or dependants there.
21.1 TIME LIMIT

An application must be made within six months from the
issue of the grant of representation to the PRs, or later with
leave of the court. PRs are protected from any personal
liability arising under any late permitted claim, provided
that they wait six months from the date of the grant before
distributing the estate to beneficiaries.
21.2 THE APPLICANT

Applicants must fall within one of the following categories
to bring a claim:
• The surviving spouse or civil partner, if married to or
in a civil partnership with the deceased at the date of
death.
• A former spouse or civil partner who has not remar-

NOTES ried nor formed a civil partnership. They may be barred
from making a claim through a ‘clean break’ divorce.
• A child of the deceased or a person treated as a child
of the family of the deceased (such as a stepchild).
Adult children are unlikely to be successful in a claim if
able-bodied and in employment.
• A person who was being maintained, wholly or partly,
by the deceased before the death. The deceased needs
to have been making a substantial contribution towards
the reasonable needs of the claimant.
• A person who was living with the deceased during the
whole of the two-year period immediately before the
death as the spouse, civil partner, or same-sex partner
of the deceased.
21.3 REASONABLE FINANCIAL PROVISION

The process for determining what constitutes reasonable
financial provision is two-part:
• Have the will or intestacy rules failed to make reason-
able financial provision for the applicant?
• If so, what would be such provision?
21.3.1 Standard for Spouses

If the applicant is a spouse, the standard is such financial
provision as would be reasonable in all the circumstances,
whether or not required for maintenance. The court should
consider what would be awarded in a divorce. The court has
discretion to apply the surviving spouse standard to former
spouses if the death occurs within 12 months of the decree
absolute and no final order has been made in those divorce
proceedings.
21.3.2 Standard for Other Applicants

For other applicants, the standard is such provision re-
quired for their maintenance such that they can live decent-
ly and comfortably according to their situation. The test is

objective, although evidence of the deceased’s reasons for
NOTES
not providing in their will for an applicant is admissible.
The reasons could be set out in the will itself or in an ac-
companying private document.
21.4 THE GUIDELINES

The guidelines for the court to consider are:
• Financial resources and needs of the applicant, any oth-
er applicant, and any beneficiary (now or in the future);
• Any moral obligation of the deceased to any applicant
or beneficiary;
• Size and nature of the net estate of the deceased;
• Physical or mental disability of any applicant or benefi-
ciary; and
• Any other relevant matter, including the conduct of any
person.
• Additionally, for a surviving spouse:
• Their age and the duration of the marriage;
• Their contribution to the welfare of the deceased’s
family; and
• The provision which might have reasonably been
expected on divorce at date of death (this is only a
starting point).
• For a former spouse, the above all apply, except the
divorce provision (unless by discretion of the court).
• For a cohabitant, relevant factors include their age, how
long they lived as spouses, and their contribution to the
welfare of the deceased’s family.
• For a child, the court considers the manner in which
they were, or might be expected to be, educated.
• For a child of the family, the court also considers

NOTES whether the deceased maintained the applicant, for how
long, and to what extent. Also relevant, if the deceased
maintained the applicant, is whether the deceased knew
the applicant was not their own child.
21.5 TYPES OF ORDERS

If the court approves the application, the estate devolves
according to the terms of the court’s order and not in ac-
cordance with the will or the rules on intestacy. The court
has very wide discretion and has the powers to make the
following orders: (1) the transfer of property; (2) payment
of a lump sum; (3) payment of income; and (4) settlement
of property on trust.
The most common is for a lump sum payment (cash or
asset transfer), but periodical payments can be ordered. Or-
ders can be made out of the deceased’s net estate at the date
of death (that is, after funeral and administration expenses,
debts and liabilities, and inheritance tax) and the deceased’s
severable share of a joint tenancy. The court also has pow-
ers to make an order regarding property disposed of by the
deceased before death if that disposal was intended to avoid
the provisions of the 1975 Act. For inheritance tax purpos-
es, any order is read back to the date of death.
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Wills and the

3 ALTERATION, AMENDMENT, AND REVOCATION OF WILLS

6 PROPERTY PASSING OUTSIDE THE WILL OR INTESTACY

7 PERSONAL REPRESENTATIVES AND GRANTS OF REPRESENTATION

9 APPLYING TO THE COURT

10 DEALING WITH HER MAJESTY’S REVENUE AND CUSTOMS

11 DUTIES AND POWERS OF PERSONAL REPRESENTATIVES

12 PROTECTION OF PERSONAL REPRESENTATIVES

13 COLLECTING AND REALISING ASSETS

15 PAYMENT OF LEGACIES AND ASCERTAINING THE RESIDUE

18 BENEFICIARIES’ RIGHTS AND REMEDIES

19 CLAIMS AGAINST ESTATES (PROVISION FOR FAMILY AND DEPENDANTS)

1 EXECUTION OF WILLS NOTES

1.2 CREATING A VALID WILL

1.3.1 Test for Capacity

• The person is unable to make a decision for themselves

1.3.2 What Is the Material Time?

To prevent any challenge to the will at a later date, you arrange

1.4.1 Rebuttable Presumption of Knowledge and

gift will fail unless evidence of the testator’s knowledge

1.4.3 Undue Influence

1.5.1 Attestation Clauses

tation clause is not included in a will, the proponent of the

1.5.2 Signature Requirements

will is handwritten by the testator and begins, “I [the testa-

1.5.3 Witness Requirement

do not need to see the contents of the will or even know

1.6 INCORPORATION BY REFERENCE

NOTES 2 ALTERATION, AMENDMENT,

2.1 ALTERATIONS AND AMENDMENTS

after the amendment. Therefore, in the above example, the

2.1.1 Unattested Alterations

• The codicil must make reference to the will;

With the advent of word processing and will-writing soft-

2.3.1 Automatically Through the Law

If some of the provisions of a will are to be revoked by the

b. Divorce, Dissolution, or Nullity

2.3.2 Deliberate Act of the Testator

disposition only to the extent that it is inconsistent with or

capacity is the same as that required for the making of

2.3.3 Dependent Relative Revocation

2.4 MUTUAL WILLS

NOTES 3 THE INTERPRETATION OF

3.1 DATE FROM WHICH THE WILL SPEAKS

3.2 TYPES OF GIFTS

3.2.1 Specific Legacy

This type of gift is subject to the doctrine of ademption (see

3.2.2 General Legacy

3.2.3 Pecuniary Legacy

3.2.4 Demonstrative Legacy

If the account is closed at the date of death or no longer has

3.2.5 Residuary Legacy

NOTES 3.3 FAILURE OF GIFTS

a. Changes in Assets Before Death

include a substitutional gift in the will. If the substitutional

a. Will Construed at Date of Execution

e. Gifts to Deceased Issue

3.4 GIFTS TO CHILDREN

3.4.1 Class Gifts

3.4.2 Class Closing Rules