Wills and Intestacy
Wills and Intestacy covers the law governing how a person's estate is distributed on death — whether by will, on intestacy, or under the Inheritance (Provision for Family and Dependants) Act 1975. SQE1 questions frequently test the formal requirements for a valid will, the rules for revocation, the intestacy rules (who gets what, and in what order), and who can bring a claim under the 1975 Act.
Practise Wills and Intestacy questions →What FLK2 tests in Wills and Intestacy
Formal Requirements for a Valid Will
Wills Act 1837 s.9: the will must be in writing; signed by the testator or by a third party in the testator's presence and direction; the testator must intend the signature to give effect to the will; signed in the presence of two witnesses present at the same time who then attest and sign. A beneficiary or their spouse who witnesses the will forfeits the gift (s.15).
Testamentary Capacity and Intention
Banks v Goodfellow [1870]: testator must understand (1) the nature of the act and its effects; (2) the extent of the property being disposed of; (3) the claims of those who might expect to benefit; (4) must not be suffering from a disorder of the mind that poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties. Must have actual intention to make the specific will.
Revocation of Wills
A will can be revoked: (1) by marriage or civil partnership (s.18 Wills Act 1837 — but the will can be made in expectation of marriage); (2) by a later will or codicil that expressly revokes or is inconsistent; (3) by physical destruction with intention to revoke (burning, tearing — both act and intention required). Divorce revokes any gift to the former spouse and appointment as executor (s.18A).
Intestacy Rules
Intestacy Administration of Estates Act 1925 (as amended): spouse/civil partner priority. Net estate up to £322,000 (statutory legacy — check current figure) to spouse; residue split half to spouse, half to issue per stirpes. If no children, spouse takes all. If no spouse: children, then parents, then siblings, then more remote relatives. Adopted children treated as biological. Illegitimate children included.
Inheritance Act 1975: Family Provision Claims
Eligible claimants (s.1): spouse/civil partner, former spouse (not remarried), person who lived as spouse for 2+ years, child, person treated as child, person maintained by the deceased. Standard: spouse — the standard is what is reasonable in all circumstances. Others — what is reasonable for maintenance only. Time limit: 6 months from grant of probate. Court can order various forms of financial provision from the estate.
Construction and Gifts in Wills
Gifts that fail: uncertainty of subject matter or object; contrary to public policy; lapse (beneficiary predeceases testator — s.33 WA 1837: gift to issue of testator who predecease does not lapse if issue survive). Condition precedent/subsequent: conditions must be certain and possible. Residue: the "sweeper clause" takes everything not otherwise disposed of. Ademption: a specific gift fails if the property is not in the estate at death.
Key cases
The cases most commonly tested in SQE1 MCQs for Wills and Intestacy.
Set the four-part test for testamentary capacity — still the authoritative test today.
A person who kills the deceased cannot benefit under their intestacy — the forfeiture rule applies to intestacy as well as wills.
The attestation requirement is strict — a witness who signs after the testator on a different day means the will is invalid.
A conditional gift requires the condition to be clearly identified; uncertainty of condition precedent makes the gift void.
Other FLK2 topics
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