Drafting and Executing Wills — SQE1 FLK2 Wills and Administration of Estates

Your client was left £5,000 by an old friend, and she is not going to get it. She did not witness the will. She was not even in the room when it was signed. Her husband was, and he signed as one of the two witnesses. He takes nothing under the will himself. It makes no difference. The gift to her is void.

Section 15 of the Wills Act 1837 voids a beneficial gift to anyone who attests the will. And it catches a gift to that witness's spouse in exactly the same way. The will itself is fine. Every other gift takes effect. Only hers falls into residue. This is Drafting and Executing Wills, the second topic in Wills and Administration of Estates. Keep your client in mind.

Here is the route. What actually goes into a will, clause by clause. Then executors: who they can be, how many, and what they can do. Then the four kinds of gift, and how each of them can fail. Then the clauses you add for children and for second marriages. Then execution, which is where wills go wrong. And last, storage and codicils.

Start with the shape of the document, because a will follows a logical order and you should be able to recite it. An opening clause appointing executors. A revocation clause. Funeral wishes. Specific gifts. Pecuniary legacies. The residuary gift. And an attestation clause at the end.

Two of those deserve a word now. The revocation clause says this will revokes all previous wills and codicils, and without it earlier documents may be read together and contradict each other. And funeral wishes are not binding on anybody. There is no property in a corpse, and the right and duty to dispose of the body belong to the personal representatives.

So a daughter who is executor, faced with a closed churchyard and a burial costing a quarter of the estate, may arrange a cremation instead. She should consider her mother's wishes. She is not bound by them, and a letter of wishes has no greater force.

Executors next. Anyone over 18 can be one: family, friends, or professionals. They must be willing, because the work is real. Gathering assets, paying debts, distributing the estate. Think about reliability, age, health, where they live, and whether they will be in conflict with the beneficiaries.

Now a number that gets tested. A client wants all five of his children to act, so that none feels excluded. Can he appoint five? Yes. A will may validly appoint any number of executors. But section 114 of the Senior Courts Act 1981 provides that probate shall not be granted to more than four persons in respect of the same part of the estate.

So four take the grant, with power reserved to the fifth, who can apply for a grant of double probate later if a proving executor dies or ceases to act. In practice fewer is easier. Every proving executor must join in the application, and they must all join in a conveyance of the deceased's land.

And always name substitutes. An executor who dies before the testator cannot act, and a will with no living executor is a problem you could have drafted away. Professional and corporate executors are an option too: they charge, but they bring expertise and impartiality, and a trust corporation brings continuity.

What can executors actually do? A good deal, without any express powers in the will at all. Section 39 of the Administration of Estates Act 1925 gives them powers of sale and management, and section 41 lets them appropriate assets towards a beneficiary's interest. So an executor may sell shares to pay the funeral bill and the legacies even if a residuary beneficiary objects and wants the shares themselves.

The reason is worth holding on to. Until the residue has been ascertained, a residuary beneficiary has no interest in any particular asset at all. Express powers are still worth adding for complex estates, but the statutory floor is higher than people assume.

Then the choice every named executor has to make, and it is not the binary people think. An executor may renounce, but only before intermeddling. Intermeddling means acting in the character of executor: collecting in money, selling assets, paying debts out of estate funds. Once you have done that, you have accepted the office.

But acts of kindness or necessity do not count, and neither do steps taken merely to find out where things stand. Finding the will. Talking to the solicitor. Arranging the funeral out of your own pocket. Changing the locks on an empty flat. None of that is intermeddling, and the executor remains free to renounce.

And there is a middle course. Where two or more executors are appointed, one may prove the will with power reserved to the other. The proving executor gives notice, and the other keeps the right to apply later for a grant of double probate. Renunciation is final. Power reserved is not. If a client wants to step back now but keep the option of stepping in later, that is the answer.

Now the gifts, and there are four kinds. Learn them by how each one fails, because that is what the questions are built on.

A specific gift is a particular identified item. My grand piano to my niece. My gold engagement ring to my daughter. If that item has ceased to belong to the testator by the death, the gift is adeemed. It fails altogether.

So try this. A will made in 2016 gives my grand piano to my niece. In 2022 the testator sells it, buys a smaller upright with part of the money, and spends the rest. She dies owning the upright. What does the niece get? Nothing. The grand piano is gone, so there is nothing for the gift to operate on, and it does not carry across to a different instrument bought later.

But watch how the gift is worded, because a general description behaves differently. All my shares in Delta plc is not tied to the particular shares owned when the will was made. Section 24 of the Wills Act 1837 makes a will speak from death as to the property it describes. So the gift carries whatever answers that description at the death. Sell 500 shares, buy 2,000 in the same company, and the niece takes the 2,000.

A pecuniary legacy is a gift of a sum of money, paid out of the general estate. £5,000 to my niece. And a residuary gift disposes of everything left after debts, expenses and the other gifts. It is usually the biggest gift in the will.

The fourth is the one people forget. A demonstrative gift is a sum of money directed to be paid out of a named fund. £10,000 out of my building society account to my son. It is treated as a general legacy with a source indicated, so the fund is applied first and any shortfall comes out of the general estate.

Which produces the answer candidates get wrong. The account held £12,000 when the will was made and only £3,000 at the death. What does the son get? £10,000. Three from the account, seven from the rest of the estate. Had the will said the £10,000 in my building society account, that would have been specific, and it would have adeemed as the account fell.

Two more distinctions. Absolute against contingent: an absolute gift takes effect on death, a contingent gift only if a condition is met. Take £50,000 to my grandson when he qualifies as a solicitor. That is a condition precedent. He takes nothing unless and until he qualifies, and if he never does, the money falls into residue.

And lapse. A gift to a beneficiary who dies before the testator lapses at common law. Section 33 of the Wills Act 1837 saves some of them, but only where the beneficiary who died was a child or remoter descendant of the testator. For a friend, a neighbour, a cleaner, you need an express substitution clause. Draft one.

Then the clauses for particular situations. Guardians first, and there is a trap in them. Section 5 of the Children Act 1989 lets a parent with parental responsibility appoint a guardian by will. But the appointment takes effect on the death only if the child then has no parent with parental responsibility.

Divorce does not remove parental responsibility. So a mother who appoints her sister as guardian, meaning to keep the children from their father, has achieved nothing while he is alive. The appointment lies dormant, springing into effect only if he dies too while a child is under 18. If she is genuinely worried, the answer is an application to the court, not a clause in a will.

Gifts to minors are usually held on trust until a stated age, and two sections of the Trustee Act 1925 do the work. Section 31 lets trustees apply income for a minor's maintenance, education or benefit. It also requires them to pay the income over once the beneficiary turns 18, even though the capital is not due until later.

Section 32 is the capital power: trustees may advance capital for a beneficiary's advancement or benefit. For trusts arising on or after 1 October 2014 it extends to the whole of the presumptive share, where it used to be capped at one half. So a grandson contingently entitled at 25 can have university fees paid out of capital at 18.

And life interests, the standard answer for a second marriage. The spouse takes the income for life, the children take the capital afterwards. It takes effect behind a trust of land, so the trustees hold the legal estate and have the powers of an absolute owner, including sale. The life tenant cannot sell and cannot veto a sale.

Now execution, and this is where wills actually go wrong. Section 9 of the Wills Act 1837. The testator signs, or acknowledges a signature already made, in the presence of two or more witnesses present at the same time. Each of those witnesses then signs in the presence of the testator. Read that again, because every word of it is tested.

Witnesses must be over 18, capable of understanding what they are witnessing, and not blind. And they must not be beneficiaries, or the spouses or civil partners of beneficiaries. That is section 15, and the consequence is precise: the gift is void, the will is not. The relationship is tested at the date of attestation.

There is one route out. Duly executing a codicil republishes the will, which is then treated as re-made at the date of the codicil. So take a friend who witnessed the will in 2019. A codicil properly witnessed by two independent neighbours in 2022 republishes the will at a date when she was not an attesting witness, and her gift is saved. That is Re Trotter.

The attestation clause records all of this: that the testator signed before two witnesses present together, who then signed in the testator's presence. It is not a requirement of section 9. A will executed correctly but with the clause left off the last page is perfectly valid, and re-execution would cure nothing.

The consequence is evidential instead. With no attestation clause, the registrar must be satisfied as to due execution before admitting the will to proof, normally on evidence from one of the witnesses. Where the clause is there in proper form, due execution is presumed. That presumption is the whole point of it.

Two short things to finish. Storage: leave the original with the firm that drew it. The original must be produced for probate. Say a will was last known to be in the testator's own possession and cannot be found at the death. The court presumes she destroyed it, intending to revoke it. A will lost in a flood can leave a client intestate.

And codicils. A codicil amends rather than replaces, and must be executed with exactly the same formalities as a will. For a very minor change it is fine. For anything substantial a fresh will is clearer, expressly revoking everything before it. Multiple codicils conflict, get lost, and have to be read together by somebody who was never in the room.

A word on how SQE1 tests this. You will not be asked to recall a case name or a section number. You get a scenario, five answers, and one instruction: pick the best. So learn what each rule does, and let the names be memory pegs.

If you keep only three things, keep these. Section 9 of the Wills Act 1837, and the six words inside it that decide most execution questions: two witnesses present at the same time. Section 15 of the same Act, which voids the gift and not the will. And section 24, which makes a will speak from death, so a gift by general description picks up whatever answers it at the death.

Five traps. One, and it costs a client money: never let a beneficiary witness the will, and never let their spouse or civil partner witness it either. The gift fails. If you are supervising, ask who everybody in the room is before anyone picks up a pen. Two: once an executor intermeddles, the option to renounce is gone.

Three: name substitute executors. An executor who dies before the testator cannot act, and a will with no living executor is a problem you could have drafted away for nothing. Four: describe gifts so that only one thing answers the description. My main residence is an invitation to litigate if the testator owns two houses. My property at a stated address is not.

Five: talk to clients about storage before they walk out with the original. A will kept at home can be lost, damaged, or thrown out with the rest of somebody's papers, and the presumption that follows is unforgiving. Nothing stops a client keeping her own will. She should just be told plainly what she is risking.

Quick check. A woman signs a codicil adding a small legacy to a friend. Her niece, who is with her, signs as a witness immediately afterwards, then returns home overseas. A week later a neighbour calls in. The woman shows him the codicil, points to her signature, tells him it is hers, and asks him to witness it. He signs while she sits beside him. Neither witness takes anything.

Is the codicil validly executed? Three candidate answers. One: no, because the two witnesses were never present together when she signed or acknowledged it. Two: yes, because she acknowledged her signature to the neighbour, who then signed in her presence. Three: yes, because each witness saw her signature and each signed while she was present. Pause here if you want a moment.

The answer is one. A codicil must be executed with the same formalities as a will. Section 9 requires the testator to sign, or to acknowledge her signature, in the presence of two or more witnesses present at the same time.

Notice what makes this hard. Each witnessing was faultless taken on its own, and acknowledgement is perfectly good in place of signing. But two separate acknowledgements a week apart do not satisfy the section, because the witnesses were never there together. The codicil is invalid and the legacy fails. The will itself is unaffected.

Why the others fail. Two and three both look at each witness separately. The section does not ask whether each witness saw enough. It asks whether both were present at the same moment when the testator signed or acknowledged.

Five things to take away. One: section 9 needs the testator to sign or acknowledge before two witnesses present together, each of whom then signs in the testator's presence. Two: a gift to a witness, or to a witness's spouse, is void, and the rest of the will stands.

Three: specific gifts adeem if the item has gone, demonstrative gifts are topped up, and a gift by general description speaks from death. Four: any number of executors may be appointed but probate goes to no more than four, and power reserved is the middle course between proving and renouncing. Five: lapse needs an express substitution clause for anyone who is not a descendant.

And your client, with her void £5,000? A properly witnessed codicil would have republished the will at a date when her husband was no longer a witness, and saved the gift. But the testatrix is dead, and that cure only exists while the client is alive. Almost every problem in this topic is cheap to prevent and expensive to fix. Next time, Alterations, Revocation and Revival.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.