A Practitioner's Guide to Wills
5th Edition
Published on 4. January 2023
Book
Hardback
624 pages
978-0-85490-296-5 (ISBN)
Description
Revised and fully updated, the fifth edition of A Practitioner's Guide to Wills provides a practical and comprehensive reference for all those concerned in drafting and interpreting wills, and in giving effect to their provisions. Among matters considered in the fifth edition are:
* What are the requirements for the virtual witnessing of wills executed during the Covid-19 pandemic?
* What can be done to help prevent a successful challenge to a will if the testator's capacity or intention might be an issue?
*To what extent can the terms of a will give rise to a need to register a trust with HMRC?
* What are the pitfalls if creating a will trust where it is hoped to claim the inheritance tax residential nil rate allowance?
* Do nil rate band discretionary trusts still have a purpose in estate planning?
* How does the court now deal with disputes over the interpretation of wills in light of Marley v Rawlings and family provision claims after Ilott v Blue Cross?
The book also contains an extensive range of specimen clauses and model wills are set out in a separate appendix. All precedent material in the book is included on the accompanying CD-ROM.
* What are the requirements for the virtual witnessing of wills executed during the Covid-19 pandemic?
* What can be done to help prevent a successful challenge to a will if the testator's capacity or intention might be an issue?
*To what extent can the terms of a will give rise to a need to register a trust with HMRC?
* What are the pitfalls if creating a will trust where it is hoped to claim the inheritance tax residential nil rate allowance?
* Do nil rate band discretionary trusts still have a purpose in estate planning?
* How does the court now deal with disputes over the interpretation of wills in light of Marley v Rawlings and family provision claims after Ilott v Blue Cross?
The book also contains an extensive range of specimen clauses and model wills are set out in a separate appendix. All precedent material in the book is included on the accompanying CD-ROM.
More details
Series
Edition
5th Revised edition
Language
English
Place of publication
London
United Kingdom
Target group
Professional and scholarly
Lawyers and professionals concerned with the drafting and interpretation of wills.
Edition type
Revised edition
Dimensions
Height: 229 mm
Width: 152 mm
Thickness: 40 mm
Weight
1080 gr
ISBN-13
978-0-85490-296-5 (9780854902965)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Previous edition
Lesley King | Keith Biggs | Peter Gausden
A Practitioner's Guide to Wills
Book
01/2017
4th Edition
Wildy, Simmonds and Hill Publishing
€105.42
Article exhausted; check for reprint
Persons
Lesley King is a professor at the University of Law and writes and lectures extensively on wills, taxation and related matters. Her books include A Modern Approach to Lifetime Tax Planning for Private Clients; Varying the Disposition of an Estate after Death; and Wills: A Practical Guide (WSH).
Peter Gausden is a solicitor and was formerly a principal lecturer at the College (now University) of Law. He now acts as a private client consultant at Rowlinsons and is a current contributor to Tolley's Administration of Estates
Keith Biggs is a former District Probate Registrar who now acts as a probate consultant. He is co-author of A Practitioner's Guide to Probate and the Administration of Estates (WSH).
Meryl Thomas has worked in practice and is currently Professor of Law at the Institute of Law in Jersey. She has worked at several universities and institutions around the world
Peter Gausden is a solicitor and was formerly a principal lecturer at the College (now University) of Law. He now acts as a private client consultant at Rowlinsons and is a current contributor to Tolley's Administration of Estates
Keith Biggs is a former District Probate Registrar who now acts as a probate consultant. He is co-author of A Practitioner's Guide to Probate and the Administration of Estates (WSH).
Meryl Thomas has worked in practice and is currently Professor of Law at the Institute of Law in Jersey. She has worked at several universities and institutions around the world
Content
Preface
Table of Precedents
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of Conventions
1 INTRODUCTION
2 THE NATURE OF A WILL
2.1 Definition
2.2 A will distinguished from other concepts
2.3 Contracts to make a will
2.4 Joint and mutual wills
2.5 Property which can validly be disposed of by will
3 TESTAMENTARY CAPACITY
3.1 Changes in capacity
3.2 Minors
3.3 Persons who lack capacity
3.4 Intention
3.5 Knowledge and approval
3.6 Mistake
3.7 Force, fear, fraud or undue influence
4 FORMAL REQUIREMENTS FOR THE CREATION OF A WILL
4.1 General
4.2 Writing
4.3 Signature
4.4 Attestation
4.5 Capacity of witnesses
4.6 Privileged wills
4.7 Incorporation of unattested documents
5 BENEFICIARIES
5.1 General
5.2 Gift to a beneficiary who predeceases the testator
5.3 Unlawful killing
5.4 Gifts for the upkeep and maintenance of graves
5.5 Gifts for animals
5.6 Gifts to societies and clubs
5.7 Gifts to charities
6 BENEFICIARIES IDENTIFIED BY DESCRIPTION OR RELATIONSHIP
6.1 Introduction
6.2 Relationship by blood and affinity
6.3 Gender-specific drafting
6.4 Illegitimacy and adoption
6.5 Children
6.6 Descendants
6.7 Step-children
6.8 Issue
6.9 Survivors
6.10 Spouses and civil partners
6.11 Next of kin
6.12 Heir
6.13 Holders of an office
6.14 Precatory words
6.15 Secret trusts
7 REVOCATION AND ALTERATION
7.1 Revocation
7.2 Divorce and revocation
7.3 Revocation by a privileged testator
7.4 Conditional revocation
7.5 Alteration
8 CODICILS, REVIVAL AND REPUBLICATION
8.1 Codicils
8.2 Revival
8.3 Republication or confirmation
9 EXECUTORS AND TRUSTEES
9.1 Appointment of executors
9.2 Who can be an executor?
9.3 Renunciation
9.4 Appointment of trustees
9.5 Guardians
10 THE DISPOSAL OF THE BODY
10.1 Directions as to disposal
10.2 Anatomical research and organ transplantation
11 FOREIGN PROPERTY OR DOMICILE
11.1 General
11.2 The concept of domicile
11.3 Movables
11.4 Immovables
11.5 Powers of appointment exercised by will
11.6 EU Regulation 650/2012
12 LEGACIES
12.1 Specific Legacies
12.2 General Legacies
12.3 Demonstrative legacies
12.4 Gifts to a debtor
12.5 Gifts to an executor
12.6 Gifts to employees
12.7 Gifts of undivided shares of personalty
13 GIFTS OF BUSINESSES
13.1 Business property relief
13.2 Succession planning
14 GIFTS OF LAND
14.1 General
14.2 Gifts to minors
14.3 Directions as to inheritance tax
14.4 Impact of the residence nil rate band
14.5 Gifts of undivided shares and clauses dealing with joint property
14.6 Right to occupy a personal residence
14.7 Gifts of testamentary options
14.8 Gifts of leaseholds
15 CONDITIONS ATTACHED TO GIFTS
15.1 Conditions precedent and subsequent
15.2 General
15.3 Effect of invalidity
15.4 Determinable Interests
16 PILOT TRUSTS
16.1 Background
16.2 Traditional pilot trust planning before the 2015 changes
16.3 The new rules introduced by the Finance (No 2) Act 2015
16.4 Additional points on the new rules
16.5 Is there any place for future pilot trusts planning?
16.6 Non-related settlements
17 GIFTS OF RESIDUE
17.1 General
17.2 The necessity for a trust
17.3 Trust for sale or power to sell
17.4 Different persons as executors and trustees
17.5 Trusts of fractional shares of residue
17.6 Providing for spouses and civil partners
17.7 Burden of inheritance tax
17.8 Survivorship clauses
17.9 Substitutional gifts
18 POWERS AND DISCRETIONARY TRUSTS
18.1 Nature and classification of powers
18.2 Wills Act 1837, section 27
18.3 Perpetuities and Accumulations Act 2009
18.4 Delegation of powers
18.5 Consent to exercise power
18.6 Release of powers
18.7 Fraudulent appointments
18.8 Discretionary trusts
18.9 Nil rate band discretionary trusts
18.10 Trusts for the disabled
18.11 Protective trusts
19 INCOME AND INTEREST
19.1 Immediate specific gifts and devises
19.2 Contingent or deferred specific gifts
19.3 General and demonstrative gifts
19.4 Residuary gifts
20 ABATEMENT, ADEMPTION, ELECTION, SATISFACTION AND CONVERSION
20.1 Abatement
20.2 Refunds
20.3 Ademption
20.4 Options to purchase and ademption
20.5 Republication and ademption
20.6 Election
20.7 Satisfaction
20.8 Conversion
21 TESTAMENTARY OPTIONS TO PURCHASE
21.1 Introduction
21.2 Terms
22 ADMINISTRATIVE PROVISIONS
22.1 Introduction
22.2 Appropriation of assets
22.3 Power to act though personally interested and to purchase trust property ('self-dealing')
22.4 Retention of directors' remuneration
22.5 Power to act by majority
22.6 Power to employ agents
22.7 Appointment of new trustees
22.8 Power to act on counsel's opinion
22.9 Indemnity clauses
22.10 Charging clauses
22.11 Power to invest
22.12 'Anti-Bartlett' clauses
22.13 Power to acquire land
22.14 Powers to manage land
22.15 Insurance
22.16 Debts
22.17 Power to carry on a business
22.18 Power to borrow
22.19 Powers in relation to particular beneficiaries
22.20 Power to advance capital
23 PERPETUITIES AND ACCUMULATION
23.1 The general perpetuity rule
23.2 The rule against vesting outside the perpetuity period
23.3 The rule against perpetual trusts
23.4 The rule against accumulations
24 CONSTRUCTION
24.1 General principles
24.2 The modern approach to construction
24.3 Presumptions
24.4 Admissibility of extrinsic evidence
24.5 Rectification
24.6 Date from which a will 'speaks'
24.7 The falsa demonstratio doctrine
24.8 Construing the same words in different parts of the same will
24.9 Meaning of particular words of description
24.10 Per capita and per stirpes distribution
24.11 Children born as a result of fertilisation techniques
24.12 Surrogacy arrangements
24.13 Class gifts
24.14 Absolute interests made subject to restrictions
24.15 Gifts to legatees and their children
24.16 Gifts to legatees and their issue
24.17 Gifts to benefit legatees
24.18 Gifts over
24.19 Contingencies relating to gifts over on death
24.20 Divesting
24.21 Failure of issue
25 FAILURE OF GIFTS AND INTESTACY
25.1 Uncertainty
25.2 Disclaimer
25.3 Forfeiture on contesting a will
25.4 The effect of failure
25.5 Acceleration of a subsequent interest
25.6 Intestacy
25.7 Accruer clauses
26 FAMILY PROVISION
26.1 Introduction
26.2 Time limit for applications
26.3 Those who can apply
26.4 Reasonable financial provision
26.5 The guidelines
26.6 Property available for financial provision
26.7 Orders which the court may make
26.8 Interim payments
26.9 Anti-avoidance
26.10 Tax implications
26.11 Minimising the chances of a successful claim
27 INHERITANCE TAX
27.1 The charge to tax
27.2 Transfers of value
27.3 Value transferred
27.4 Transfers which are not transfers of value
27.5 Chargeable transfers
27.6 Excluded property
27.7 Exemptions and reliefs
27.8 The transferable nil rate band
27.9 The residence nil rate band
27.10 Reservation of benefit
27.11 The reduced rate for charitable giving
27.12 General tax planning
27.13 Post-death variations
28 CAPITAL GAINS TAX
28.1 Introduction
28.2 Rates of tax
28.3 Disposal of assets
28.4 Effect of death
28.5 Exemptions and reliefs
28.6 Accelerated payment of tax
28.7 Rearranging succession provisions after death
28.8 Basic tax planning
29 SETTLEMENTS
29.1 Liability to inheritance tax
29.2 Liability to capital gains tax
29.3 Inheritance Tax Act 1984, section 144: appointments from trusts within 2 years of death
29.4 The need to register settlements
30 TAX-EFFICIENT WILL PLANNING
30.1 Introduction
30.2 Estate planning options
30.3 Problems with using the residence nil rate band
APPENDICES
A1 COMPLETE WILLS AND MISCELLANEOUS PRECEDENTS
A1A Standard will: full form (long)
A1B Mutual wills
A1C Will disposing of a business
A1D Will of widow(er) exercising power of appointment given by will of pre-deceased spouse or civil partner
A1E Will giving nil rate band legacy to discretionary trust
A1F Simple will giving all property to another of full age absolutely
A1G Codicil made on separation from spouse or civil partner prior to divorce or annulment
A1H Will providing for discretionary trust of income during perpetuity period with division of capital at the end of period between surviving beneficiaries
A1I Letter of wishes to trustees
A1J Deed of variation to sever beneficial joint tenancy and create nil rate band legacy
A1K Deed of variation of a will
A2 NIL RATE BAND DISCRETIONARY TRUSTS WITH DEBT/CHARGE PROVISIONS
A2A Explanatory note
A2B Additional clauses for a will containing a nil rate band discretionary trust which is to include debt/ charge provisions
A2C Debt scheme: draft letter from the executors to the trustees of the legacy fund (when a charge is being imposed by the executors)
A2D Debt scheme: securing the debt
A3 TEMPORARY CHANGES TO WILLS ACT 1837, SECTION 9 TO ALLOW REMOTE WITNESSING
A3.1 The position in April 2020 at the beginning of the COVID-19 lockdown
A3.2 The amending legislation
A3.3 The procedure for remote witnessing
A3.4 Possible attestation clause where both witnesses are witnessing remotely
A3.5 Problems
Index
Table of Precedents
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of Conventions
1 INTRODUCTION
2 THE NATURE OF A WILL
2.1 Definition
2.2 A will distinguished from other concepts
2.3 Contracts to make a will
2.4 Joint and mutual wills
2.5 Property which can validly be disposed of by will
3 TESTAMENTARY CAPACITY
3.1 Changes in capacity
3.2 Minors
3.3 Persons who lack capacity
3.4 Intention
3.5 Knowledge and approval
3.6 Mistake
3.7 Force, fear, fraud or undue influence
4 FORMAL REQUIREMENTS FOR THE CREATION OF A WILL
4.1 General
4.2 Writing
4.3 Signature
4.4 Attestation
4.5 Capacity of witnesses
4.6 Privileged wills
4.7 Incorporation of unattested documents
5 BENEFICIARIES
5.1 General
5.2 Gift to a beneficiary who predeceases the testator
5.3 Unlawful killing
5.4 Gifts for the upkeep and maintenance of graves
5.5 Gifts for animals
5.6 Gifts to societies and clubs
5.7 Gifts to charities
6 BENEFICIARIES IDENTIFIED BY DESCRIPTION OR RELATIONSHIP
6.1 Introduction
6.2 Relationship by blood and affinity
6.3 Gender-specific drafting
6.4 Illegitimacy and adoption
6.5 Children
6.6 Descendants
6.7 Step-children
6.8 Issue
6.9 Survivors
6.10 Spouses and civil partners
6.11 Next of kin
6.12 Heir
6.13 Holders of an office
6.14 Precatory words
6.15 Secret trusts
7 REVOCATION AND ALTERATION
7.1 Revocation
7.2 Divorce and revocation
7.3 Revocation by a privileged testator
7.4 Conditional revocation
7.5 Alteration
8 CODICILS, REVIVAL AND REPUBLICATION
8.1 Codicils
8.2 Revival
8.3 Republication or confirmation
9 EXECUTORS AND TRUSTEES
9.1 Appointment of executors
9.2 Who can be an executor?
9.3 Renunciation
9.4 Appointment of trustees
9.5 Guardians
10 THE DISPOSAL OF THE BODY
10.1 Directions as to disposal
10.2 Anatomical research and organ transplantation
11 FOREIGN PROPERTY OR DOMICILE
11.1 General
11.2 The concept of domicile
11.3 Movables
11.4 Immovables
11.5 Powers of appointment exercised by will
11.6 EU Regulation 650/2012
12 LEGACIES
12.1 Specific Legacies
12.2 General Legacies
12.3 Demonstrative legacies
12.4 Gifts to a debtor
12.5 Gifts to an executor
12.6 Gifts to employees
12.7 Gifts of undivided shares of personalty
13 GIFTS OF BUSINESSES
13.1 Business property relief
13.2 Succession planning
14 GIFTS OF LAND
14.1 General
14.2 Gifts to minors
14.3 Directions as to inheritance tax
14.4 Impact of the residence nil rate band
14.5 Gifts of undivided shares and clauses dealing with joint property
14.6 Right to occupy a personal residence
14.7 Gifts of testamentary options
14.8 Gifts of leaseholds
15 CONDITIONS ATTACHED TO GIFTS
15.1 Conditions precedent and subsequent
15.2 General
15.3 Effect of invalidity
15.4 Determinable Interests
16 PILOT TRUSTS
16.1 Background
16.2 Traditional pilot trust planning before the 2015 changes
16.3 The new rules introduced by the Finance (No 2) Act 2015
16.4 Additional points on the new rules
16.5 Is there any place for future pilot trusts planning?
16.6 Non-related settlements
17 GIFTS OF RESIDUE
17.1 General
17.2 The necessity for a trust
17.3 Trust for sale or power to sell
17.4 Different persons as executors and trustees
17.5 Trusts of fractional shares of residue
17.6 Providing for spouses and civil partners
17.7 Burden of inheritance tax
17.8 Survivorship clauses
17.9 Substitutional gifts
18 POWERS AND DISCRETIONARY TRUSTS
18.1 Nature and classification of powers
18.2 Wills Act 1837, section 27
18.3 Perpetuities and Accumulations Act 2009
18.4 Delegation of powers
18.5 Consent to exercise power
18.6 Release of powers
18.7 Fraudulent appointments
18.8 Discretionary trusts
18.9 Nil rate band discretionary trusts
18.10 Trusts for the disabled
18.11 Protective trusts
19 INCOME AND INTEREST
19.1 Immediate specific gifts and devises
19.2 Contingent or deferred specific gifts
19.3 General and demonstrative gifts
19.4 Residuary gifts
20 ABATEMENT, ADEMPTION, ELECTION, SATISFACTION AND CONVERSION
20.1 Abatement
20.2 Refunds
20.3 Ademption
20.4 Options to purchase and ademption
20.5 Republication and ademption
20.6 Election
20.7 Satisfaction
20.8 Conversion
21 TESTAMENTARY OPTIONS TO PURCHASE
21.1 Introduction
21.2 Terms
22 ADMINISTRATIVE PROVISIONS
22.1 Introduction
22.2 Appropriation of assets
22.3 Power to act though personally interested and to purchase trust property ('self-dealing')
22.4 Retention of directors' remuneration
22.5 Power to act by majority
22.6 Power to employ agents
22.7 Appointment of new trustees
22.8 Power to act on counsel's opinion
22.9 Indemnity clauses
22.10 Charging clauses
22.11 Power to invest
22.12 'Anti-Bartlett' clauses
22.13 Power to acquire land
22.14 Powers to manage land
22.15 Insurance
22.16 Debts
22.17 Power to carry on a business
22.18 Power to borrow
22.19 Powers in relation to particular beneficiaries
22.20 Power to advance capital
23 PERPETUITIES AND ACCUMULATION
23.1 The general perpetuity rule
23.2 The rule against vesting outside the perpetuity period
23.3 The rule against perpetual trusts
23.4 The rule against accumulations
24 CONSTRUCTION
24.1 General principles
24.2 The modern approach to construction
24.3 Presumptions
24.4 Admissibility of extrinsic evidence
24.5 Rectification
24.6 Date from which a will 'speaks'
24.7 The falsa demonstratio doctrine
24.8 Construing the same words in different parts of the same will
24.9 Meaning of particular words of description
24.10 Per capita and per stirpes distribution
24.11 Children born as a result of fertilisation techniques
24.12 Surrogacy arrangements
24.13 Class gifts
24.14 Absolute interests made subject to restrictions
24.15 Gifts to legatees and their children
24.16 Gifts to legatees and their issue
24.17 Gifts to benefit legatees
24.18 Gifts over
24.19 Contingencies relating to gifts over on death
24.20 Divesting
24.21 Failure of issue
25 FAILURE OF GIFTS AND INTESTACY
25.1 Uncertainty
25.2 Disclaimer
25.3 Forfeiture on contesting a will
25.4 The effect of failure
25.5 Acceleration of a subsequent interest
25.6 Intestacy
25.7 Accruer clauses
26 FAMILY PROVISION
26.1 Introduction
26.2 Time limit for applications
26.3 Those who can apply
26.4 Reasonable financial provision
26.5 The guidelines
26.6 Property available for financial provision
26.7 Orders which the court may make
26.8 Interim payments
26.9 Anti-avoidance
26.10 Tax implications
26.11 Minimising the chances of a successful claim
27 INHERITANCE TAX
27.1 The charge to tax
27.2 Transfers of value
27.3 Value transferred
27.4 Transfers which are not transfers of value
27.5 Chargeable transfers
27.6 Excluded property
27.7 Exemptions and reliefs
27.8 The transferable nil rate band
27.9 The residence nil rate band
27.10 Reservation of benefit
27.11 The reduced rate for charitable giving
27.12 General tax planning
27.13 Post-death variations
28 CAPITAL GAINS TAX
28.1 Introduction
28.2 Rates of tax
28.3 Disposal of assets
28.4 Effect of death
28.5 Exemptions and reliefs
28.6 Accelerated payment of tax
28.7 Rearranging succession provisions after death
28.8 Basic tax planning
29 SETTLEMENTS
29.1 Liability to inheritance tax
29.2 Liability to capital gains tax
29.3 Inheritance Tax Act 1984, section 144: appointments from trusts within 2 years of death
29.4 The need to register settlements
30 TAX-EFFICIENT WILL PLANNING
30.1 Introduction
30.2 Estate planning options
30.3 Problems with using the residence nil rate band
APPENDICES
A1 COMPLETE WILLS AND MISCELLANEOUS PRECEDENTS
A1A Standard will: full form (long)
A1B Mutual wills
A1C Will disposing of a business
A1D Will of widow(er) exercising power of appointment given by will of pre-deceased spouse or civil partner
A1E Will giving nil rate band legacy to discretionary trust
A1F Simple will giving all property to another of full age absolutely
A1G Codicil made on separation from spouse or civil partner prior to divorce or annulment
A1H Will providing for discretionary trust of income during perpetuity period with division of capital at the end of period between surviving beneficiaries
A1I Letter of wishes to trustees
A1J Deed of variation to sever beneficial joint tenancy and create nil rate band legacy
A1K Deed of variation of a will
A2 NIL RATE BAND DISCRETIONARY TRUSTS WITH DEBT/CHARGE PROVISIONS
A2A Explanatory note
A2B Additional clauses for a will containing a nil rate band discretionary trust which is to include debt/ charge provisions
A2C Debt scheme: draft letter from the executors to the trustees of the legacy fund (when a charge is being imposed by the executors)
A2D Debt scheme: securing the debt
A3 TEMPORARY CHANGES TO WILLS ACT 1837, SECTION 9 TO ALLOW REMOTE WITNESSING
A3.1 The position in April 2020 at the beginning of the COVID-19 lockdown
A3.2 The amending legislation
A3.3 The procedure for remote witnessing
A3.4 Possible attestation clause where both witnesses are witnessing remotely
A3.5 Problems
Index