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Probate law – The Terms of a Will

With the increase in Will writing services, including internet Will writing, we may inevitably start to see a decrease in the number of formally drawn wills drafted and executed by the family firm of solicitors, and potentially we will experience a rise in the number of problems associated with poor draftsmanship and lack of understanding of the nature of the terms of a Will. 

It is therefore a good idea to acquaint yourselves with the traditional formal structure of a will, so that should you receive a letter referring to the “lack of a formal attestation clause” for example, you will know what to start looking for and whether in fact it is relevant or important. 

We will therefore look at a specimen Will so that you can familiarise yourselves with the terminology (see The Last Will & Testament of Homer Simpson attached). 

Looking at each clause of the will in turn then: 

Clause 1: Commencement and revocation  

This should obviously include the full name and address of the testator, and, for the avoidance of any doubt, include the revocation of all previous wills and codicils. 

Clause 2: Appointment of executors / trustees 

The Executor of the Will is the person entrusted to administer your Estate after you die, as well as arranging your funeral and carrying out your wishes. This role carries a lot of responsibility and can involve a significant amount of tax, legal and administrative work.

Any number may be appointed however only four can take out the grant.  Whilst one will suffice, it is sensible for another executor to be appointed to cover the possibility of the executor predeceasing the testator. 

Some of the main duties of the Executor include:

  • Calculating the value of everything you own (including your property, assets and investments)
  • Calculating and paying Inheritance Tax
  • Applying to the Probate Registry for the Grant of Probate, if needed
  • Collecting in the Estate’s assets and selling or transferring these
  • Settling any outstanding debts, such as a loan or mortgage
  • Distributing the remaining Estate to the Beneficiaries (in line with the terms of the Will)

For the above reasons, it is important to choose carefully when deciding who to appoint as your Executor. This should be someone you trust, who is likely to be willing and able to take on this role when the time comes.

Bear in mind that lay Executors are not paid for the time they spend carrying out this work, but a professional Executor will charge a fee for this service.

Clause 3: Specific, demonstrative, pecuniary and reversionary gifts 

A specific bequest is an identifiable asset / chattel i.e. the Duff Beer can collection; a clock; a building society account.  NB This also includes a “nil rate band legacy” or “I bequeath a sum equivalent to 10% of the baseline amount of my estate to X charity”. 

A demonstrative bequest is a gift from an identifiable source i.e. £500 from the Smile account; a record from my collection; 6 plates from my Denby collection. 

A pecuniary bequest is obviously a set amount of money from general funds rather than from a specific source. 

A reversionary bequest, also known as a life interest gift,  is where a gift is made to someone for their life and then for it to be passed to another person / charity i.e. the residue of my estate to my wife for life and then to Queen’s University Belfast on her demise. 

Clause 4: Residuary gift 

This bequeaths the remainder of the assets after the payment of all debts, funeral and testamentary (executorship) expenses including tax.  This can be left to any number of people or organisations and it is a good idea when your charity is to receive a percentage of an estate, to ensure that the division of residue actually adds up to 100% and so avoids a partial intestacy or rectification application. 

Clause 5: Administrative clauses  

Wills will commonly include additional administrative provisions to enable the executors/trustees to exercise wider powers than those given to them by the general law – for example powers of investment, appropriation and exclusion of the rules of apportionment. Many draftsmen use the STEP provisions in this shortened form. 

Clause 6: Date & attestation  

The date of signature and witnessing of the Will should obviously always be included so that should numerous wills be found they can be read chronologically and the last Will admitted to Probate. 

Whilst an attestation clause is not required the inclusion of one leads to a presumption of due execution.