Wills, Probate and Trusts

Introduction to Wills, Intestacies, and Joint Wills

Wills

A Will provides that a deceased person’s property is to be distributed among people intended to benefit. For these provisions to be effective it is essential that the property subject to them be described and identified clearly. The policy of the law is that it is unfair to impose on an executor the burden of distributing property unless it is known exactly what that property is.

in English law, a person is free to leave his/her property in a Will to whoever he likes. It follows that nobody, even a close relative, is entitled to any particular asset or share of a deceased person’s estate

Intestacies

where a person dies without any will, this situation is referred to as Intestacy, and the court will appoint Administrator (Executors) who are normally close friends of the deceased. The property is distributed by the rules of intestacy.

Important

Executors are the people appointed by the person who has made the will (testator/settlor). The court can also appoint executors they are known as the administrator.

Both Administrators and executors are also known as personal representative

It is not unusual that the same person could be appointed as Trustee and personal representative as well at the same time

Characteristic of will

  • A valid will acts as both, an instrument for transfer of property (land and personal property) and an instrument for Declaration of Trust
  • In the absence of a will, the Intestacy rules under the Administration of Estate Act 1925 applies and the property will go to deceased person’s relatives
  • A testator can revoke any of his wills and make a new one while he is alive.
  • The person who is making a will has the freedom to leave his property to whom he likes
  • The person who is making a will is not obliged to provide for his/her spouse or children
  • The will takes effect on the death

Rules to be followed while writing a will

  • The will must be written, signed by the testator/testatrix (Person writing a will and distributing his property) and signature must also be witnessed by two persons
Example

Phillip wants to write a will. Phillip can leave his personal property and land in any way he likes. However, when writing a will, Phillip must sign it and there must be two witnesses to the will.

Phillip can revoke his will during his lifetime and can make a new will and has to follow the rules of signing and witnessing

  • To add anything into a will or remove anything from a will, the testator/testatrix has to write a new will and follow the procedure.
Example

Phillip does not want to leave his house to his son and wants to amend his will written some time ago. Phillip has to write a new will to make this amendment

  • The witness of the will cannot be the beneficiary of the will. If a person who is writing a will wants to leave some property to someone, then that person must not sign the will as a witness.
  • A witness cannot also be a beneficiary
  • A marriage or divorce will automatically revoke the will made before the divorce or marriage
  • A will is a public document, once the person who has written the will has died the executors can apply for a probate
  • Will is a public document and copy of the will can be obtained and read by any member of the public
  • Wills can be obtained from Probate Registry

Probate

Probate is a process by which the executors of the will prove to the court that the document is the will of the deceased.

Mutual Wills

In a mutual Will, husband and wife make wills leaving their property to the same or similar person, usually, they would leave the property to each other and then to the same person or persons most commonly their children or close relatives. Both parties (spouses) agree that they will never change the will and disinherit the children or other beneficiaries. There must be an agreement not to change the will to make the mutual will binding.

Problem
  • In the English legal system, a person can change his/her will while he is alive and it is this newer will which is recognized by law
  • Often on the death of one spouse other tries to or does change his will
Rules
  • When a spouse dies, the agreement not to change the will or make a mutual will becomes binding on the survivor
  • The agreement (not to change the will) may be incorporated in the will or proved by extraneous evidence. It may be oral or in writing
  • The consideration for the mutual will contract is the promise not to change the respective will.

Revocation of Mutual Will

  • A mutual will can be revoked while both spouses are alive.
  • The one spouse must give notice to the other that he/she is changing his/her will
Joint will
  • The husband and wife make the similar or identical wills. This could be in one document or more usually husband and wife make a separate will.
Mirror wills
  • The husband and wife make an identical or near-identical will in separate documents
  • Both joint and mirror wills are a type of mutual will

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Disclaimer​

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legallex does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.

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