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 counsels 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
