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Wills, probate and administration

Lifetime gifts – capacity

A donor (D) had to be capable of understanding the general nature of the transaction he was undertaking. D was an elderly man who had gifted the family home to his son in a misguided effort to minimise IHT prior to death. The gift was held invalid for lack of capacity but whether it was void or voidable was not decided, mainly because the law was unclear.

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Statutory wills – capacity

Practitioners should note that the Mental Capacity Act 2005 has had a big impact on the approach to statutory wills made on behalf of individuals lacking capacity. The Act requires all decisions made under it to be made ‘in his best interests’, the meaning of which is expanded further in s4: the person making the determination must consider all relevant circumstances including specific factors set out in the Act. Prior to this, the court would make the will the patient would have made if mentally capable at the time.

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Procedure – LPAs

New forms for LPAs came into effect in October 2009, replacing the original 2007 forms. Practitioners should note some of the important changes these introduce under the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2009:

The regulations do not affect existing EPAs, whether registered or unregistered.

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Property – pre-death agreements

Practitioners must be increasingly cautious regarding formal agreements relating to property owned by co-owners, where one owner enters a new relationship, and that property is included within a will.

A recent case illustrates this. Reginald and Jacqueline Heath jointly owned a property in Stoke on Trent and had three children. They divorced in 1994 and drew up a formal agreement in 1997 stating that Mr Heath would purchase Mrs Heath’s share, making him the outright sole owner of the property.

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Property – assents; rights of beneficiaries

It was appropriate to adopt a single transaction approach to a will and to assents of property distributed under that will, to ascertain the rights of the beneficiaries over a right of way granted by the testatrix.

E was the grantor of two properties left under a will to two individuals, in which she also expressly mentioned a right of way in relation to those properties. Assents were made in favour of the beneficiaries, subject to the right of way and easements affecting it in each case.

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Wills – revocation

A will could not be revoked under the Wills Act where the testator then entered a civil partnership and the will merely included a general statement that it was his intention that it should survive a subsequent civil partnership. Also, the will did not show he was expecting to enter a civil partnership, let alone with a named person.

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Wills – joint assets; election

The CA used the rarely applied doctrine of election in a recent case. Where a testator’s (T) will purports to give away property that he does not own and the true owner is a beneficiary under the will, he has a choice. He must elect whether to co-operate and give effect to the will by contributing the asset, or accept a reduced share of the estate, taking into account the value of his own property.

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Wills – joint assets; specific performance

In a recent case, a house was in the joint names of the deceased (D) and his first wife (F). D died intestate, the estate passing to his second wife (W). W relied on an agreement signed by F some years previously in which she agreed to sell her interest to D. D had declared that if anything happened before contracts were completed, his son would be the beneficiary.

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Wills – testamentary capacity

In the light of increasingly complex claims based on lack of testamentary capacity, here is a useful reminder of factors to be considered:

    The test for testamentary capacity is set out in Banks [1870].

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Contested probate – testamentary capacity; costs

The CA emphasised that the rule that legal practitioners should consult medical practitioners regarding the mental capacity of a testator was a rule of good practice and not a rule of law.

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