IPP Notes

Interviewing

Two must haves for interviews skills and structure.

Skills:-

- Listening
Avoid asking close ended questions, instead, encourage the client to speak.
- Silence
Aids in client remembering facts/details of the matter.
- Questioning
- Analysing
- Explaining
- Note-taking

Structure

- Greetings
- Preliminaries
- Obtaining of the facts
Let the client talk, sit and observe body language and encourage the conversation.
- Filling in the detail
Questioning the client on facts given.
- Advising
Analyse and explain client’s position, then explain the range of options available to them. Encourage dialogue to
come to a decision on a plan of action.
- Closing

Initial interviews

Lawyers need to obtain:-

- The nature of the client’s problem or proposed transaction

- The relevant background facts
- The client’s feelings and objectives.
Wills and Administration of estate

 The court can override a will if they believe that a reasonable financial provision was not made for a close
relative or dependant. This is done under the Inheritance ( Provision for Family and Dependants) Act 1975.

What property can pass under a will?

 Property held in the sole name of the testator at the time of their death
 Cash, money in the bank, building society accounts, stocks and shares, other investments, land and chattels.
Property owned as beneficial tenant in common.
 If the individual does not dispose of such property by will rules of intestacy will apply.

What property can pass independently of the will and intestacy rules?

 Joint property- Joint tenancy will automatically pass the interest of the tenant that died to the surviving tenant
because of survivorship.
 Nominated property- statutory provisions allow individuals to nominate what is to happen to certain types of
funds after the nominators death.
- This will instruct the institution to pay money into the account to the nominated third party. It cannot exceed
$5,000.
- If no nomination is made the money will pass under will or intestacy.
 Insurance policies
 Pension benefits

The requirements for a valid will

 An individual must be 18 or over.

 Must have the requisite mental capacity
 Banks v Goodfellow (1870) defined capacity as; soundness of mind, memory and understanding.
 The testator must understand:-
- The nature of their act and its broad effects
- The extent of their property. And
- The moral claims they ought to consider.
 Testator cannot be suffering from any insane delusion which affects the disposition of property,

Proof and presumptions

 The person who puts a will forward has to prove that all the necessary elements including mental capacity is
present.
 If there is anything to put the testaor’s general capacity in doubt, the presumption will not apply and the PR’s will
have to prove capacity on the basis of the banks v Goodfellow test.
 The mental capacity act 2005 introduced a statutory test in s.3 to determine whether a person had capacity to
take a decision. S.1(2) “ for the purpose of this act a person must be assumed to have capacity unless it is
established that he lacks capacity”.
 However, later cases settled on the Act not applying to a person’s capacity to make their will.

Intention

 When the will is signed the testator must have both general and specific intention
 Must intend to make a will and must know and approve of its contents.

Proof and presumptions

  The person putting forward the will, is the person who will have the burden of proving the testators knowledge.
 The presumption is “ a testor who has capacity and has then read and executed the will is presumed to have the
requisite knowledge and approval.
 The presumption will not apply to the following circumstances:-
- Testator blind/illiterate/not signing personally.
- Suspicious circumstances.

Force, fear, fraud or undue influence

 If a person is interested in challenging a will they can do so on these grounds.

 The person will have the burden of proving one or more of these grounds.

Mistake

 All or part of the will may be included by mistake. Any words included without the knowledge and approval of
the testator will be omitted from probate.

Formalities for execution

The wills Act 1837, s.9 states it must be in:-

- Writing signed by the testator

- The testator intended by his signature to give effect to the will; and
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the
same time; and
- Each witness either
- Attest and sign the will or acknowledge the signature.

There is one exception to the rules stated in s.9. The exception listed in s.11 Wills Act 1837, states a will made on actual
military service or by a mariner or seaman at sea is valid and may be in any form, including a mere oral statement. The
only requirement is that the testator intends to dispose of their property after their death. Ayling v Summers (2010)

N.B it is the circumstances in which the will is made that are important, not the circumstances of death.

How has covid affected signing the will in presence of two witnesses?

Presence has been given a wide interpretation in the case of Casson v Dade (1781), what is required for presence to valid
is a “line of sight”.

However, the existence of a line of sight is not enough there must also be a consciousness of what is going on, according
to Justice Gorell Barnes in Brown v Skirrow (1903)

Remote Witnessing

The Wills Act 1837 (electronic communications) (Amendement) (Coronavirus) Order 2020 (SI 2020/952). S.9 (2) “ in
relation to wills made on or after 31 January 2020 and on or before 31 January 2022, “ presence includes presence by
means of video conference or other visual transmission”.

This change was extended to wills made on or before 31 January 2024.

However, s.9 (1) (a) is not amended so if a will is signed on behalf of the testator is must be in the actual presence of the
testator.

N.B- the order does not allow a remotely witnessed will to be proved if a grant of probate has been issued before
September 2020.

There are measures on the remote witnessing. ( SEE TEXTBOOK PAGE 383)
Proof and presumptions

if the will includes a clause which recites that the s.9 formalities were observed, a presumption of due execution is
raised. The will is valid unless there is proof that the formalities were not observed. Such a clause is called an
ATTESTATION clause.

If there is no attestation clause, the district judge (or registrar) must require an affidavit or witness statement verified by
a statement of truth from a witness or any other person who was present during the execution, or failing that, an
affidavit of handwriting evidence to identify the testator’s signature, or refer the case to a judge.

While it is not essential where remote witnessing took place the attestation clause should be amended to recite this and
the necessary formalities were complied with.

The testator and the two witnesses must enter the date on which they each actually sign. The dates may well differ and,
as explained above, the will is not valid until all three have signed.

Witnesses

They must be capable of understanding the significance of being the witness to a signature.

If either of the witnesses is a beneficiary under the will or is the spouse or civil partner of a beneficiary, the will remains
valid but the gift to the witnesses or to the witness’s spouse or civil partner fails. ( The Wills Act 1937, s.15).

Solicitors when preparing wills must give clear instructions to their clients explaining how to sign and witness the will. A
warning should be given that beneficiaries and those married to or civil partners of beneficiaries should not be
witnesses.

If the will is returned to the solicitor for storage the solicitor is under a duty to check the signatures to see whether ss.9
and 15 appear to have been complied with.

Failure to do so may lead to liability in negligence.

Revocation

Testators can revoke a will during their lifetime. There are three ways to revoke a will.

By a later will or codicil

The Wills Act 1837 (s.20) a will may be revoked in whole or in part by a later will or codicil. Normally, a will contains an
express clause revoking all earlier wills and codicils.

If a will does not contain an express revocation clause, it operates to revoke any earlier will or codicil by implication to
the extent that the TWO ARE INCONSISTENT.

EXCEPTION, the court may decide that a testator’s intention to revoke an earlier will by an express revocation clause was
conditional upon a particular event. If that condition is not satisfied, the revocation may be held to be invalid so that the
earlier will remains effective.

By marriage or formation of a civil partnership

If the testator marries or forms a civil partnership after executing a will. The will is automatically revoked. ( Wills Act
1837, s.18).

However, if the will was made with the intention of marriage forthcoming with a particular person and does not intend
the will to be revoked the rule DOES NOT APPLY.
If a same sex couple converts their civil partnership into a same sex marriage, the conversion will not revoke the will of
either party. S.18 of the Wills Act 1837.

Divorce? If a testator makes a will and is later divorced, or if the civil partnership is dissolved ( declared null or void) Then
under the Wills Act 1837, s.18A (amended by the Law reform (Succession) Act 1995, the will remains VALID.

By destruction

A will may be revoked by “burning, tearing or otherwise destroying the same by the testator or by some person in his
presence and by his direction with the INTENTION of revoking the same” ( Wills Act 1837, s.20).

If its destroyed by accident or mistake it is not revoked. If its contents can be reconstructed, an order may be obtained
allowing its admission to probate as a valid will.

Physical destruction is required. Symbolic destruction such as crossing out a word or writing revoked is not sufficient.
However if a vital part such as the signature is destroyed it may be held to revoke the entire will.

Destruction must be in the testator’s presence and by their direction.

The court can apply the doctrine of dependent relative revocation to save a will on the basis that the testators intention
to revoke their will by destruction was conditional upon some future event.

If that event did not take place the original will may be valid even if it was destroyed.

Alterations

The basic rule is that the alterations are invalid unless it can be proved that they were made before the will was
executed, or unless the alterations are executed like a will.

If the original words are obliterated in such a way that they can no longer be read, those words have effectively been
revoked by destruction.

The rest of the will remains valid, and take effect with the omission of the obliterated words.

How a will takes effect?

The will takes effect from the date of the testator’s death.

The people dealing with the estate will be called executors, if they were appointed by the will, and administrators, if
there was no appointment in the will.

What property passes under the gifts in the will?

When the PR’s have decided what property is capable of passing under the will, they must apply the terms of the will to
the property.

The basic rule

The Wills Act 1837, s.24 “ ever will shall be construed, with reference to the real estate and personal estate comprised in
it, to speak and take effect as if it had been executed immediately before death of the testator, unless a contrary
intention shall appear by the will”.

A gift of “all my estate” or “ all the rest of my estate” takes effect to dispose of all property the testator owned when they
died, whether or not to the testator owned it at the time the will was made.

Ademption

Ademption occurs because the property has been sold, given away or destroyed during the testator’s lifetime
Problems may arise where the asset has been retained but has changed its nature since the will was made.

Only if there has been a change in substance will the gift be adeemed.

What happens if the testator disposes of the specific gift but before their death acquires a different item of property
which answers the same description?

It has been held that the presumption in such a case is that the testator meant only to dispose of the particular asset
they owned at the date of the will so that the gift is adeemed.

If the property given is capable of increase or decrease, the testator will normally be taken to have made a gift of any
items satisfying the description at death.

Has the beneficiary survived the testator?

Basic rule

A gift in a will fails or lapses if the beneficiary dies before the testator. If a legacy lapses, the property falls into residue,
unless the testator has provided for the possibility of lapse by including a substitutional gift.

If a gift of residue lapses, the property passes under the intestacy rules, unless the testator has included a substitutional
gift in the will.

Provided the beneficiary survives the testator, for however short of a time, the gift takes effect.

If a codicil is made to the will, it republishes the will and the will is treated as made at the date of the republication.

E.g if the eldest son dies between the date of the will and the codicil, the will is construed as referring to the person who
is the eldest son at the date of the codicil.

Law of Property Act 1925, s.184.

If the deaths of the testator and beneficiary occur very close together, it is vital to establish who died first.

The law of succession does not accept the possibility that two people might die at the same instant.

If the order of their deaths cannot be proved, s.184 provides the elder of the two is deemed to have died first. If the
testator was older the gift will take effect and the property passes to the beneficiary and passes as part of the
beneficiary’s estate.

Survivorship clause

See textbook page 389.

Lapse of gifts to more than one person

A gift by will to two or more people as joint tenants will not lapse unless all the donees die before the testator.

Wills Act 1837, s.33: gifts to children and remoter issue.

The gift does not lapse but passes instead to the beneficiary’s issue. The issue of a deceased beneficiary take the gift
their parent would have

Section 33 will not apply if the will shows contrary intention

Does the gift fail for any other reason?

Divorce or dissolution of a civil partnership

The Wills Act 1837, s.18A “ any property which, or an interest in which, is devised or bequeathed to the former spouse or
civil partner shall pass as if the former spouse or civil partner had died” on the date of the dissolution or annulment of
the marriage or civil partnership.

Forfeiture

The fore feiture rule provides that, as a matter of public policy, a person should not be able to inherit from a person they
have been convicted of unlawfully killing. This do not apply in cases where the killer was insane within the meaning of
the McNaghten rules.

See textbook for more page 391.

The effect of the intestacy rules

- Administration of Estates Act 1925 (AEA 1925)

- This will apply because the deceased died intestate or because their will failed to disposed of all their estate.
- This only applies to property which is capable of being left by will.

PROBATE PRACTICE AND PROCEDURE

- A grant of representation- a court document authorizing the deceased’s PR’s to transfer the deceased assets.

First steps after receiving instructions

- The deceased will must be copied and distributed to all executors

- Directions as to cremation etc.
- Details of assets and liabilities- obtain information, of debts, property etc.
- Details of the beneficiaries
- Missing and/or unknown creditors and beneficiaries
- Early advertisement
- Placing the advertisement
- Time for claims- not less than two months from the date of the notice.
- Searches in case of land
- Distribution after notices- when the time-limit in the notice expired, the PRs may distribute the deceased estate,
considering only those claims of which they have actual knowledge, or which they discover as a result of
advertisement.
- Missing known creditors and beneficiaries- see textbook page 407.

The trustee Act 1925 (s.27)- will not give protection to PRs who knows that there is a person with a claim but cannot find
them. It protects only against unknown claims.

A grant may not be required in these situations:-

-Administration of Estates (Small Payments) Act 1965- payments can be made without formal proof of title not exceeding
$5000.

- Chattels- furniture, clothing, jewelry, and cars

- Cash
- joint property

- property not forming part of the deceased estate

- pension benefits.