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A Practitioner's Guide to Wills 5th ed

Lesley King, Keith Biggs, Peter Gausden

Edited by: Meryl Thomas

ISBN13: 9780854902965

Previous Edition ISBN: 9780854902040

Published: January 2023

Publisher: Wildy, Simmonds and Hill Publishing

Country of Publication: UK

Format: Hardback & CD-ROM

Price: £95.00

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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?

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The book also contains an extensive range of specimen clauses and model wills which are set out in a separate appendix. All precedent material in the book is included on the accompanying CD-ROM.

Subjects:: Wills and Probate, Wildy, Simmonds and Hill

Contents:: 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