WAE: Interpretation

Question 1

What three criteria must be met to validly incorporate an unexecuted document into a will by reference?

Answer 1

The document must exist when the will (or codicil) is executed; the will must refer to it as existing at that time; and it must be clearly identified in the will.

Question 2

What happens if an incorporated document cannot be found at death?

Answer 2

The will fails to incorporate it and its provisions have no effect

Question 3

Why should practitioners avoid relying on incorporated schedules for personal property?

Answer 3

Because the testator may lose or alter the list before death or fail one of the incorporation tests

Question 4

What are the STEP provisions and how are they incorporated?

Answer 4

Standard administrative powers drafted by the Society of Trust & Estate Practitioners

Question 5

What is a “letter of wishes” in will practice?

Answer 5

A non-binding document stored with the will that provides guidance to trustees on how the testator would like them to exercise discretionary powers.

Question 6

How must gifts to a testator’s issue (children or descendants) be drafted to avoid ambiguity?

Answer 6

Decide whether they are class gifts or to named individuals; state vesting (absolute) or contingent interests; and include express substitution if a beneficiary predeceases.

Question 7

What is the difference between a vested and a contingent gift?

Answer 7

A vested gift is absolute and payable at death; a contingent gift requires a condition (e.g. reaching an age) before vesting and will lapse if the condition is not met.

Question 8

How does section 33 of the Wills Act 1837 operate for gifts to issue?

Answer 8

It implies per stirpes substitution: if a child beneficiary dies before the testator leaving issue

Question 9

Why is it advisable to exclude or override section 33 expressly in your drafting?

Answer 9

Because reliance on implied substitution can create uncertainty over contingencies

Question 10

What must you do when leaving a legacy to an unincorporated association or charity?

Answer 10

Identify it by full name and address (and charity number)

Question 11

What does “the will speaks from the date of death” mean for identifying gifts?

Answer 11

Unless the will shows a contrary intention

Question 12

What wording demonstrates a contrary intention to s 24 WA and fixes the gift to the date of execution?

Answer 12

Words like “my” or “now” or “at the date of this will” in relation to specific items signal that intention and risk adeemable gifts.

Question 13

How are class gifts of “my grandchildren” and similar handled regarding timing?

Answer 13

By default the class closes when the first beneficiary’s interest vests (e.g. upon date of death or contingency); express closing dates avoid reliance on rules of construction.

Question 14

What is the general rule for who bears inheritance tax on legacies under a will?

Answer 14

Specific and pecuniary legacies are paid free of IHT and the tax liability falls on the residuary estate by default.

Question 15

Under s 35 Administration of Estates Act 1925

Answer 15

who bears the burden of secured charges on property given by a will?

Question 16

How can two closely successive deaths be handled in a will to avoid double administration and IHT issues?

Answer 16

Include a survivorship clause (e.g. beneficiary must survive the testator by 28 days) to prevent uncertain commorientes and double administrations.

Question 17

What are the formal requirements for validly executing a will under s 9 Wills Act 1837?

Answer 17

The testator must sign (or acknowledge a signature) in the presence of two witnesses

Question 18

Why is an express revocation clause important in a will?

Answer 18

To avoid any doubt over the validity of multiple testamentary documents; an express clause revoking all prior wills and codicils ensures only one effective will.

Question 19

How should you draft specific gifts of chattels to avoid uncertainty and unintended adeemance?

Answer 19

Use the statutory definition of chattels (s 55 AEA) and list any exceptions (e.g. business assets); include fallback if items are sold or missing.

Question 20

What is the role of non-dispositive (administrative) clauses in a will?

Answer 20

They appoint executors and trustees