SQE1 Assessment Specification – Wills and Administration of Estates
- Validity of wills and codicils: Testamentary capacity, duress and undue influence, formal requirements under s.9 Wills Act 1837.
- Property passing outside the estate: Joint property, life policies, pension scheme benefits, and trust interests.
1. Introduction: The Fundamental Order of Analysis
A Will, broadly speaking, is a legal document that meets the formal execution requirements set out in section 9 of the Wills Act 1837 — it records how a person wants their property dealt with after they die. A codicil is different: rather than being a standalone Will, it’s typically used to amend, alter, revive, or cancel an earlier Will. It’s also possible for someone to hold more than one valid Will at the same time, which often happens when they own property in multiple jurisdictions and want separate documents to govern each.
Generally, in presence of Will, people often overlooks a critical preliminary step: identifying assets that pass outside the testamentary disposition (or the intestacy rules) altogether. A significant portion of a deceased person’s wealth – particularly modern financial products – operates under their own sui generis rules of succession.
The law dictates a strict tripartite order of analysis that every solicitor must follow when advising on beneficial entitlement:
- Property passing outside the will and intestacy: Assets governed by survivorship, trust deeds, pension scheme discretions, or nominated beneficiary designations.
- Property passing under the will: All assets to which the deceased was beneficially entitled and which are effectively disposed of by a valid testamentary document.
- Property passing on intestacy: Any assets not captured by (1) or (2) fall to be distributed under the Administration of Estates Act 1925.
This order is not merely academic; it has profound practical consequences. Assets passing outside the will are not available to pay testamentary debts, pecuniary legacies, or inheritance tax attributable to the estate. They also do not vest in the personal representatives and cannot be used to meet the expenses of administration. Understanding this order is the cornerstone of all probate practice.
2. Property Passing Outside the Will and Intestacy Rules
This category encompasses assets over which the deceased had no dispositive power by will, either because the asset was held in a form that automatically transfers to another, or because the deceased’s interest terminated on death.
2.1 Joint Property – The Doctrine of Survivorship
Where property is held by two or more persons as beneficial joint tenants, the deceased’s interest does not form part of their estate. The law recognises a “right of survivorship” (jus accrescendi) which operates automatically on death. The surviving joint tenant(s) simply continue to own the whole property as if the deceased’s share never existed separately.
This rule applies to both real property (land) and personal property (bank accounts, investments, chattels). It is a fundamental principle of co-ownership that cannot be altered by will. The deceased had no distinct share that could be disposed of; they held the entirety jointly with the others, and the severance of their personality simply leaves the others in undisturbed possession.
Critical contrast – Tenancy in Common: If the property is held as tenants in common, each owner holds a distinct, undivided share. There is no survivorship. The share passes under the deceased’s will or intestacy. This is why title documents and conveyancing advice must always clarify the nature of the co-ownership. In many cases, family homes are held as joint tenants between spouses, but this is not universally so.
Practical implication for solicitors: When taking instructions, always ascertain how significant assets (especially the home and bank accounts) are held. A will that purports to give away a joint tenant’s share is ineffective – the asset never reaches the estate.
2.2 Life Assurance Policies
The treatment of life policies depends entirely on the contractual and trust arrangements put in place by the policyholder during their lifetime.
Policies written in trust or assigned: If the policyholder executed a trust deed (or assignment) in favour of named individuals, the benefit of the policy belongs to those beneficiaries (or trustees holding for them) during the policyholder’s lifetime. On death, the insurance company pays the sum assured directly to the trustees/beneficiaries. The deceased had no proprietary interest in the policy proceeds, and they are entirely outside the estate. This is a highly tax-efficient method of providing for dependants, as the proceeds typically fall outside the inheritance tax charge on death.
Policies payable to the estate: If no trust or assignment exists, the policy matures and the proceeds vest in the personal representatives. They become part of the general estate and are distributed under the will or intestacy. They are also subject to inheritance tax as part of the deceased’s estate.
Relevant for solicitors: When advising on estate planning, always consider whether to recommend writing policies in trust. It can save significant inheritance tax and provides immediate funds to dependants without waiting for probate.
2.3 Pension Benefits
Most occupational and personal pension schemes provide for a lump sum payment on death “in service” (or after retirement, depending on the scheme). Crucially, these payments are typically made at the absolute discretion of the pension fund trustees. The trustees have a power (not a duty) to select beneficiaries from a defined class, usually the deceased’s family, dependants, or persons nominated in a non-binding “letter of wishes”.
Because the deceased never had an indefeasible right to the fund during their lifetime (it is held on a discretionary trust), the lump sum passes independently of the will. The trustees exercise their own judgement, and the proceeds never vest in the personal representatives.
The exceptional case: A minority of older or bespoke schemes provide that the lump sum must be paid to the estate. In these limited circumstances, the monies vest in the PRs and form part of the testamentary estate. Identifying the scheme rules is therefore essential.
Tax advantage: Discretionary pension lump sums are often exempt from inheritance tax, making them a valuable tool for estate planning alongside life policies.
2.4 Trust Property – The Extinction of Life Interests
If the deceased was a life tenant under an existing trust (entitled to the income or enjoyment of property for their life, with the capital passing to remaindermen), their interest terminates automatically on their death. The capital of the trust does not form part of the deceased’s estate. It passes under the trust instrument to the remaindermen, irrespective of any testamentary provision.
This rule prevents a life tenant from “converting” their life interest into capital by will. The trust structure dictates the succession. This is often encountered with interests in family settlements, statutory trusts, and certain pension death benefit trusts.
Solicitor’s work-flow reminder: Always start with a “property inventory” that explicitly classifies assets into (a) passing outside the will, (b) passing under the will, and (c) passing on intestacy. This prevents the common error of assuming the will covers everything.
3. Essential Wills Terminology
Accurate drafting and construction of wills depend on a precise understanding of the language of gifts. The following terms form the bedrock of all testamentary dispositions:
- Testator / Testatrix: The individual making the will. They must have legal capacity and intention at the time of execution.
- Executor / Executrix: The person(s) appointed to carry out the administration. They derive authority from the will itself and have the legal title to the deceased’s assets (subject to the grant of probate confirming that title).
- Legacy (personality) / Devise (realty): Gifts of moveable property (legacies) versus gifts of land (devises). The distinction is historical but still relevant for certain statutory rules relating to payment of debts.
The Five Categories of Gifts:
- Specific gift: A gift of a particular, identifiable asset that the testator owns at the date of the will (e.g., “my blue Rolls-Royce”). The risk is ademption – if the asset is sold or disposed of before death, the gift fails and the beneficiary receives nothing in substitution, unless the will provides otherwise.
- General gift: A gift described generically, not tied to a specific asset (e.g., “100 shares in BT plc” or “£10,000”). If the testator does not own the item, the executors must purchase it using estate funds to satisfy the gift.
- Demonstrative gift: A hybrid: a general gift that directs payment from a particular fund (e.g., “£5,000 payable from my Nationwide savings account”). If the fund has insufficient money, the shortfall is paid from the general residue, making it a secure gift for the beneficiary.
- Pecuniary gift: A gift of a fixed sum of money. It is the most common type of general legacy.
- Residuary gift: The sweeping-up provision. It passes all remaining property after debts, funeral expenses, administration costs, and specific/pecuniary legacies have been satisfied. In most estates, the residue represents the bulk of the inheritance.
Understanding ademption: The rule in s.24 Wills Act 1837 provides that a will speaks from death with regard to property. Thus, a gift of “all my estate” includes property acquired after the will was made. However, for a specific gift, the testator must own the item at death. If not, the gift is adeemed. Drafting devices such as “my property which at my death constitutes my main residence” can avoid ademption when a house is sold and replaced.
4. The Three Pillars of a Valid Will
A will is valid if, and only if, the testator satisfies three cumulative requirements. A defect in any one invalidates the entire document.
4.1 Testamentary Capacity – The Banks v Goodfellow Test
The classic formulation of testamentary capacity is the four-limbed test from Banks v Goodfellow (1870). It remains the definitive test, despite the later statutory capacity framework under the Mental Capacity Act 2005 (which the courts have held does not supplant the common law test for wills).
At the time of execution, the testator must:
- Understand the nature of the act: They must appreciate that they are executing a will and that it will determine the disposition of their property on death. This is a low threshold – they need not understand the legal technicalities, only the fundamental purpose.
- Know the extent of their property: They must have a general, rational appreciation of the assets they own. They do not need to recollect every share certificate or bank balance, but they must be aware of the broad composition and approximate value of their estate.
- Comprehend the moral claims: They must understand the persons who might naturally expect to benefit (spouse, children, close relatives). Crucially, they are free to reject those claims, provided they consciously consider them. A testator who cuts out a child due to estrangement is perfectly capable; one who does so because of a delusional belief that the child is a demon lacks capacity.
- Be free of insane delusions: Any disorder of the mind that perverts the testator’s reasoning in relation to the disposition of property will vitiate the will. However, the delusion must be directly causative of the particular disposition.
The Parker v Felgate Exception: The general rule that capacity must exist at execution is relaxed where the testator gives clear instructions to a solicitor while they have capacity, and then loses capacity before signing. Provided the solicitor prepares the will precisely in accordance with those instructions, and the testator understands at the signing that they are executing a will prepared from their earlier instructions, the will is valid. This is a crucial protection for solicitors acting for elderly or ill clients.
The “Golden Rule” – Practical Protection: Where capacity is doubtful (due to age, illness, or medical condition), the solicitor should obtain a contemporaneous medical report from a qualified practitioner confirming capacity. The doctor should ideally witness the will. This provides powerful evidentiary protection against later challenges (as seen in Kenward v Adams) and is a key risk-management tool.
4.2 Intention – Knowledge and Approval
Beyond capacity, the testator must have both general intention (to make a will) and specific intention (to know and approve the actual contents of the particular will).
The Presumption: Where a testator with capacity signs a will, the law presumes knowledge and approval. This is a pragmatic rule; executors are not normally required to prove that the testator read and understood every clause. The will stands.
Rebutting the Presumption: The presumption is reversed in two critical scenarios, placing the burden on those propounding the will:
- Disability: If the testator was blind, illiterate, or the will was signed by another person on their behalf, the court requires independent evidence (e.g., an affidavit from the solicitor or witness) that the will was read over, explained, or otherwise brought to the testator’s understanding.
- Suspicious Circumstances: This is the most frequently litigated ground. If the will was prepared by a person who takes a substantial benefit, or by someone closely associated with a major beneficiary, the presumption falls away. The classic case is Wintle v Nye (1959), where a solicitor-beneficiary drafted a will for an elderly, unsophisticated client. The House of Lords held that the burden of proving knowledge and approval was so heavy that the solicitor could not discharge it. More recently, Gill v Woodall (2010) confirmed that suspicious circumstances can arise even where the beneficiary did not draft the will, if the testator’s condition or the surrounding facts are sufficiently unusual.
Vitiating Factors (Undoing the Will): Even if knowledge and approval are established, the will (or part of it) can be challenged on separate grounds:
- Force, fear, or duress: Actual or threatened violence compelling the testator.
- Fraud: Deliberate misrepresentation causing the testator to make a gift they would not otherwise have made.
- Undue influence: This is notoriously difficult to prove. It requires coercion that overbears the testator’s free will. Persuasion, pressure, or mere importunity does not suffice. The person challenging must prove that the testator’s volition was effectively destroyed. A failed claim often results in a severe costs penalty.
- Mistake: Words included in the will without the testator’s knowledge will be omitted from probate. However, a mistake as to the legal effect of words used (e.g., misunderstanding the meaning of a legal term) is not a ground for rectification; the words stand as written.
4.3 Formalities of Execution – Section 9 of the Wills Act 1837
Section 9 is a strict compliance statute. Its purpose is to prevent fraud, forgery, and coercion by requiring formal, witnessed authentication. The requirements are cumulative:
- In writing: Physical written form is required. While paper is standard, the courts have accepted unconventional media (e.g., an eggshell). However, purely electronic wills (e.g., a Word document stored on a computer) are not accepted, as they lack the physical integrity to prevent fraudulent alteration.
- Signature: The testator must sign the will, or another person may sign in their presence and at their direction. Any mark intended to represent the testator’s name is sufficient – crosses, thumbprints, or “Your loving mother” have all been upheld. The testator must give a positive, discernible direction if a proxy signs.
- Intent to give effect: The signature must be made with the intention of validating the document as a will. A signature on an envelope containing the will, or on a letter referring to the will, is insufficient.
- Two witnesses – joint presence: The testator must sign (or acknowledge their existing signature) in the joint presence of two witnesses. Both witnesses must be present simultaneously at this first stage.
- Witnesses attest – presence of testator: Each witness must then sign (or acknowledge their signature) in the presence of the testator. The witnesses need not sign in each other’s presence. “Presence” requires both physical proximity (an unobstructed line of sight) and mental awareness that a signing is taking place.
- A temporary amendment to the Wills Act 1837 in the backdrop of Covid19 allowed the remote witnessing of wills via live video conferencing. While wills executed via video between January 31, 2020, and January 31, 2024, are legally valid, this remote-witnessing provision expired at midnight on January 31, 2024.
The Attestation Clause – Presumption of Due Execution: A standard clause at the end of the will (e.g., “Signed by the testator in our joint presence…”) recites compliance with s.9. This clause raises a presumption of due execution. Consequently, the executor does not need to prove the formalities unless the will is challenged. If the clause is absent, the Probate Registry will require an affidavit of due execution from a witness, causing delay and expense.
Privileged Wills (s.11): There is a limited exception for soldiers on active military service and mariners or seamen at sea. They can make informal (including oral) wills. Only the intention to dispose of property is required. This exception, rooted in the exigencies of service, allows, for example, a soldier to say “if I don’t make it, Anne gets everything” and have it upheld as a valid will.
Effect of a beneficiary witnessing (s.15): If a beneficiary (or their spouse/civil partner) witnesses the will, the will remains valid, but the gift to that witness (or their spouse) fails. The rationale is public policy: a witness should be impartial. This is a drafting trap that solicitors must warn clients about; it is a common source of negligence claims.
5. The Shifting Burden of Proof
A recurring theme in probate litigation is who must prove what. Understanding these presumptions is critical when applying for a grant or advising a client on the prospects of challenging a will.
- Capacity: The law presumes capacity if the will is rational on its face and the testator showed no signs of confusion. The burden of proving lack of capacity lies on the person challenging the will. This is a high evidentiary hurdle.
- Knowledge and Approval: The presumption applies automatically if the testator had capacity and signed. It is rebutted only by showing disability or suspicious circumstances. Where rebutted, the burden shifts to the propounder to prove (on a balance of probabilities) that the testator actually knew and approved the contents.
- Due Execution: An attestation clause raises a presumption of due execution. The challenger must prove that the formalities were not observed. Without an attestation clause, the executor must provide evidence (affidavit of due execution) to satisfy the registrar.
Practical significance for solicitors: When acting for executors, always ensure the will contains a proper attestation clause. When acting for a potential challenger, assess whether you can displace these presumptions with admissible evidence.
6. Solicitor’s Duties – Professional Conduct and Negligence
A solicitor drafting a will owes a duty of care not only to the testator but also to the intended beneficiaries. This is a well-established principle of tort law. Failure to exercise reasonable skill and care can result in substantial negligence claims.
Key professional obligations include:
- Taking instructions directly: The SRA Code of Conduct requires you to act only on instructions from the client (or a properly authorised person). Taking instructions from a third party (especially a potential beneficiary) is a serious breach, as it risks fraud, miscommunication, and undue influence.
- Warning against beneficiary witnesses: You must explicitly warn the testator that a beneficiary (or their spouse/civil partner) must not act as a witness. Failure to do so, where the gift fails, exposes you to liability for the lost legacy (as seen in reported negligence cases).
- Supervising execution: It is best practice to have the will executed at your office under your supervision. If the client must execute elsewhere, provide clear, written instructions (preferably with a checklist) and ask the client to return the will so you can verify compliance with s.9.
- Golden Rule compliance: Where capacity is in doubt, obtain a medical report and ask the doctor to witness. Keep a detailed file note of your own assessment of the testator’s capacity and understanding.
- Conflicts of interest: You cannot accept a significant gift under a will you draft unless the testator has received independent legal advice. This is a strict rule under the SRA Principles to prevent exploitation of a client’s trust.
The leading case on negligence: Humbleston v Martin Tolhurst Partnership (2004) illustrates the peril. The solicitor’s secretary accepted an invalid will (not signed by the testator) and incorrectly advised it was “in order”. The intended beneficiary lost everything and successfully sued the firm for the full value of the lost legacy. This underscores the critical importance of rigorous procedures at the execution stage.
