Comprehensive Report: Executor Duties and Validity of Will Clauses

This assignment provides a comprehensive legal analysis of will clauses and executor duties in estate law. It begins with a letter to Jasmine Jones, advising her on the validity of will clauses and her responsibilities as an executor and trustee. The analysis covers various aspects, including the roles of executors and administrators, the process of probate, and the types of property included in an estate. It addresses specific clauses in the will, such as gifts to Sarah, John Smith, and the niece, as well as provisions for law students and a neighbor. The assignment also discusses inheritance tax implications, the importance of assessing the estate's value, and compliance with Solicitor Regulation Authority (SRA) practice rules. Furthermore, the legal note outlines the principles related to gifts, SRA regulations, ascertainment of estate value, inheritance tax, legal presumptions, testator provisions, equality and diversity, Section 19 of the Wills Act 1837, and probate rules.

Law
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TABLE OF CONTENTS
Part I: Letter.....................................................................................................................................3
PART II: LEGAL NOTE SETTING OUT THE LEGAL PRINCIPLES:......................................6
Rules relating to gifts...................................................................................................................6
Solicitor Regulation Act practice rules relating to Dealing with the client's matter...................6
SRA practice rules relating to Indicative behaviours..................................................................7
The legal provision relating to ascertainment of the value of a deceased person’s estate...........7
Rules concerning Tax on Estate..................................................................................................8
Legal rules relating to presumption.............................................................................................9
Provisions relating to the testator..............................................................................................10
Equality and diversity................................................................................................................10
Section 19 of Wills Act 1837.....................................................................................................11
Rules relating to probate or confirmation..................................................................................11
Bibliography..................................................................................................................................12
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PART I: LETTER
Dear Jasmine Jones,
Hello
I have gone through the letter provided by you, in order to provide you advise relating to the
validity of those clauses through which you will be able to make a decision that whether you are
able to distribute the property in accordance with Hubert’s wish or not. I think, first of all, it is
necessary for you to understand the responsibility of an executor and trustee. Provisions are
made by the law regarding the money and property of the deceased person and the persons who
handle the money of the dead person is known as executor or administrator. It’s the
responsibility of the executor to pay the taxes and debts of the deceased person and moreover
provide the money and property to the person entitled to it. In case, if a dead person already left
valid will then the person who manages its estate is known as the deceased person's
'executor.
In case, if a dead person left an untrue or invalid will than the person who manages such kind of
will is known as the administrator. Court hires an administrator before they make transactions
with the property of the deceased person.
Furthermore, in case the high amount of money and property of their estate is left by the dead
person then it’s a liability of the executor or of the administrator to apply for the grant of
representation to increase access to the money or property — an approval application required to
be made to the Probate Registry for same. However, if the valid will is left behind by the
deceased person than probate of the will is granted by Probate Registry. And in contrast, if the
invalid or untrue will is left by the dead person than grant of letters of administration is issued by
Probate Registry. Real estate generally, houses, antiques, shares, works of art, jewellery,
intangible property like copyrights and patents are included in the property.
If in case the property of the deceased person is held by the other persons than it is the major
responsibility of the deceased administrator and executor that they should make inquiries
regarding the current owner and how it was possessed by them. In the situation, the property is a
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house than it is essential to have written documentary evidence of the type of ownership. Further,
in case the property and the assets of a deceased person is sold at a profi tthan the Capital Gains
Tax will be paid and the profit above the market value at the date of death go above the current
Capital Gains Tax threshold.
In present case £ 50000 will be provided to Sarah as per Hubert’s wish; however, he can make
trust of the specified amount on the name of grandchildren and held Sarah as trustee so that the
money could be utilized for the children. Further,£ 100000 will be given to John Smith, Hubert’s
friend along with one of the available London flats. In order to provide the flat, it is required to
be assessed that the choice is to be applied on the flats which are not allocated to other persons.
Greenacre; Hulbert’s country house is to be provided to his favourite niece. The justification
behind the same can be given that as all the elements of legal contract do not exist between the
conversation of Damian and Hulbert. Further, as the house should be allocated to the niece in the
manner stated in the will. The decision relating to niece will be taken after having a discussion
with the family members and providing each member with a fair chance to prove their claim
relating to a statement made by them.
Further, £ 150000 will be distributed to the law students who lived in London, in the manner you
wanted as same has been specified in the will. Lastly, the half of the best wines should be
provided to next door neighbour Irene Lungs. In order to determine the amount of inheritance
tax, the price of wines will be estimated. If the price is of the total property and other assets of
Hubert is more than £325000, the inheritance tax will be paid, otherwise not.
Other considerations which are necessary to be accessed before a Will is allowed to probate are
as follows: the court has got to be satisfied that the testator is acquainted with and accepted of its
contents at the time they signed it. A testator may perhapsadd in their Will a document that has
not been accordinglyimplemented by them and therefore makes that document part of their Will
even if it is unattested. The document to be included is:
 Existence time when the will is created
 Referred to as being in continuation
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 Properly recognized
At the time when the will is going to execute at that moment, all the documents should be
available, documents must not come existence into the future date. The Will have got topass on
to the document as already being in continuation at the time the Will is implemented.The
document should be adequately explained in the Will so that it could be recognized and not
misguided with any other files or document. By integration, the document turns out to be
testamentary and ought to be interpreted with the Will at the time of confessing to probate as part
of the Will and moreover filed with the Will in the probate registry. I wish that now you will be
able to take an appropriate decision relating to the distribution of Hubert’s property in
accordance with his wish stated in the will. In case any issues exist you can communicate with
me.
Yours truly…..
Solicitor
ID …………
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PART II: LEGAL NOTE SETTING OUT THE LEGAL PRINCIPLES:
Rules relating to gifts
A gift could be:
 Anything which comprises some value for example possessions, money, assets, etc.
 When something is being transferred by an individual with the loss,for instance, the
house is sold by a person to its child at less than its real price, the variation in price will
be considered asa gift1.
An individual can give gift valuing £3000 every year without adding the worth of estate in it.
The same will be called asan annual exemption. Furthermore, it is the right of a person to give
as much as money he wants to give to their grandchildren without any direct tax implications,
since there is no tax within the UK for instance transfer tax, on gifted transfers of money among
people2.
Solicitor Regulation Act practice rules relating to Dealing with the client's matter
For handling the matters of client Mr. Hubert, the following rules are required to complywith
following legal rules:
Approval of a suitable level of services with their customers such as frequency and kind of
communication they use. Further making understand about their duties to the customers and
make sure that customers have all the information in written such as form, name, status, and
subject matter, the status of the responsible person and about its management3. Making clear
about allthe preparations, for instance, fee sharing or referral preparations, which are appropriate
to the customer’s orders; all the limits and situations which is done for the clients should be
1Frederick Benjamin MacKinnon,. Contingent Fees for Legal Services: Professional Economics and
Responsibilities. (Routledge, 2017).
2Doné Howell. "Death and taxes." (Tax Professional 2017.29 2017) Pp 24-26.
3Phil Hocking. "Probate registry's transition to digital: What you need to know." (Bulletin Law Society of South
Australia 40.8 2018) Pp 28.
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understandable. For taking orders and throughout the course of the payment and
havingappropriate regard to their customer’s mental ability or another susceptibilityfor example
incapability or duress. It should be made known to the clients that they are not allowed to the
protections of the SRA Compensation Fund4.
SRA practice rules relating to Indicative behaviours
Acting in the following way(s) might be inclined to show that they have attained these result and
consequently complied with the Principles:
Should have a written fairness and diversity strategy (which perhaps restricted within one or
more documents, as well as one or more strategy documents, as appropriate) which is suitable to
the size and nature of the company and includes the following features5:
 Assurance to the principles of parity and diversity and legislative necessities,anobligation
that all employees and managers obey with the endings,
 Provisions are to be included in their employment and interview procedure,
 Information regarding the firm implementation, supervise, assess and keep informed
about the strategy, information about the insurance of the equality in relation to the
behaviour with workers, executives, customers and third parties instructed in association
with customer matters,
 Information about the companies arrangements for personnel diversity monitoring, and
information on how the company will converse the strategy
to workers, directors and customers6.
The legal provision relating to ascertainment of the value of a deceased person’s
estate
It is important to assess the value ofestate prior to applying for probate7. The value of estate has
to be written in the probate form. In order to estimate the value to the estate, it is required to:
4John Clarke. "Solicitors as executors: Responsibilities and rewards." (LSJ: Law Society of NSW Journal 50 2018)
Pp 85.
5Richard F. Storrow,. "Wills and Survival." (Quinnipiac L. Rev. 34 2015) Pp 447.
6Pauline Kenny, RA Morley Samuel and J. Higgins Daryl. Forced Adoption Support Services: Establishing and
building networks. (Department of Social Services, 2017).
7Phil Hocking. "Probate registry's transition to digital: What you need to know." (Bulletin Law Society of South
Australia 40.8 2018) Pp 28.
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1. Determine the worth of any assets for example possessions, private pensions, savings,
jewellery or preciouscollectables, shares. If it is considered that the worth of assets is
above £500then it should be valued professionally8.
2. Valuation of gifts which are given by a deceased person in the last seven years prior to
the death.The same must be included in the value of the estate. Further, the inheritance
tax will be charged on certain kind of gifts given by the person before the death9.
3. The amount of debt should be ascertained if any, for instance, mortgage, loans, credit
cards. In case the estate is paying for the funeral, then the costs related to the same will
be included in the valuation of the estate10. Furthermore, if there is joint debt, then the
share in debt of deceased person should be determined.
4. Once the debt is paid, the value of the estate should be determined11.
5. On the basis of how it is owned, the value of estate will be included.
Rules concerning Tax on Estate
The tax has to be paid if the estate is large and the same is known as inheritance tax12. If the
value of the estate is less than £325000 threshold than there is no need of paying tax. On the
other hand, anything that values more than £325000 threshold, the tax has to be paid13.
The executor is obliged to:
 Determine whether any gift is made in the seven years by the person who has died.
 Check whether the inheritance tax on the estateis paid or not.
 Complete the form of inheritance tax and forward it to HMRC that is HM revenue and
customs, if it is correct14.
8Barry C. Crown,. "Where There's a Will, There's a Way." (SAcLJ27 2015) Pp 222.
9Karen Rowlingson. "‘You Can’t Take It with You When You Die’: Wealth, Intestacy Rules and Inheritance
Tax." (Death and social policy in challenging times. Palgrave Macmillan, London, 2016) Pp 168-183.
10Yu-Chun Pan and Tan Chekfoung. "Three dimensional norm-based knowledge management for knowledge
intensive business service organizations: an organizational semiotics perspective." (International Journal of
Knowledge Engineering2.1 2016) Pp 50-55.
11Peter Leyland and Anthony Gordon. Textbook on administrative law. (Oxford University Press, 2016).
12Jens Kleinschmidt. "Agency and authority of agents." (Encyclopedia of Private International Law. Edward Elgar
Publishing Limited, 2017) Pp 29-39.
13Gerry W. Beyer and K. Hanft John. Wills, Trusts, and Estates for Legal Assistants. (Wolters Kluwer Law &
Business, 2015).
14Crispin Passmore. "The Solicitors Regulation Authority: looking to the future." (Legal Ethics 19.1 2016) Pp145-
159.
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In addition to this, it is the responsibility of solicitor to ensure that HMRC is informed when
there isa situation where an inheritance tax payment is necessitated to be made such as assets
awarded or payments made to the recipients15. In case the executor fails to report thisthen the fine
will be accused that might not be able to come from the estate16.
In the case of Furniss V. Dawson (1984), it is held by House of Lords that, it made futile tax
avoidance schemes which do not includes any commercial purpose except the avoidance of tax17.
It is embraced by the House of Lords in 1981, in the case of Ramsay Ltd v. (IRC, Eibeck
(Inspector of Taxes) v. Rawling), that there is a complex tax evasion scheme which was
marketed within the UK in the 1970s. Moreover, a series of the transactionwas established by the
case with the objective of tax avoidance, which eventually revokes each other out, could be
overlooked for tax goals18.
Thus, the solicitor is obliged to follow all the rules specified above so that the amount of tax
related to wines and other property can be ascertained. The provisions specified above will be
complied by the solicitor in order to avoid penalties.
Legal rules relating to presumption
Various presumptions will be applicable if the will is formed into the regular and rational form19.
Moreover,due implementation will be presumed by the court if obtainable with a Will duly. The
power of the maxim is based on the various situations, therefore, the presumption could be
disproved20.
Moreover in the situation where the drafted will appears rational on the face of it then the court
will assume the testator's capacity to create a Will21. And for making a decision if a matter
deprives than the testator of mental ability, the test in Banks v Good fellow must be applied.
15Crispin Passmore. "The Solicitors Regulation Authority: looking to the future." (Legal Ethics 19.1 2016) Pp 145-
159.
16Caroline Sawyer and Spero Miriam. Succession, Wills and Probate. (Routledge, 2015).
17Furniss (Inspector of Taxes) v. Dawson D.E.R., Furniss (Inspector of Taxes) v. Dawson G.E., Murdoch (Inspector
of Taxes) v. Dawson R.S (1984)
18Ramsay Ltd v. (IRC, Eibeck (Inspector of Taxes) v. Rawling) (1981)
19Jonathan Herring. Legal ethics. (Oxford University Press, 2017).
20Jacob Arthur Bradley,. "Antemortem Probate Is a Bad Idea: Why Antemortem Probate Will Not Work and Should
Not Work." (Miss. LJ 85 2016) Pp 1431.
21Nathan M Crystal,. Professional responsibility: Problems of practice and the profession. (Wolters Kluwer Law &
Business, 2017).
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Provisions relating to the testator
It is important to practice the powers of making a will so that testator can know the nature and
effects of the act. Moreover must know about the amount of the property which he is deposing22.
He must be powerful enough to appreciate and understand about the claims to which he must
give effect, as well as, with a sight to the latter object, that no chaos of the mind shall fatal his
affections, distort his sense of right, or stop the implement of his usual faculties; that no insane
illusion put pressure at his Will in disposing of his property and carry on a disposal of it which,
in case, the mind had been sound, would not have been completed23.
It is commonly known that test is practised when the will was executed. It is important to know
that testamentary intentions are not applicable in the situation where the testator has been forced
into implementing a document as his Will or where there has been deception24.
Equality and diversity
According to the Solicitor Code of Conduct 2011 (SRA), everyone is obliged to contribute to
acquiescence with requirements such as through treating each other with respect, by embedding
such values in the company and through challenging improper behaviour procedure25. The role
of the person in embedding these values will differ according to the role of the person. Thus, in
the case of ascertaining the favourite niece of Hubert; appropriate opportunity will be provided to
all people to state the truth so that appropriate decision can be taken regarding the property of
Greenacre.
Section 19 of Wills Act 1837
Moreover, in accordance with section 19 of Wills Act 1837, the deed cannot be rescinded on any
belief of an intention on the basis of modifications in circumstances.26
Payments to be made by a solicitor prior to allocation of assets in accordance with will:
1. Rent or mortgage on the home of a died person
22David Horton. "Wills Law on the Ground." (UCLA L. Rev. 62 2015) Pp 1094.
23Eli Wald, and G. Pearce Russell. "Being good lawyers: a relational approach to law practice." (Geo. J. Legal
Ethics 29 2016) Pp 601.
24Stefan Bach. "Inheritance tax: Limit corporate privileges and spread tax burden." (DIW Economic Bulletin 5.7
2015) Pp 91-99.
25Andrew Boon. "The legal professions’ new handbooks: narratives, standards and values." (Legal Ethics 19.2 2016)
Pp 207-233.
26James Penner. The law of trusts. (Oxford University Press, 2016).
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2. Cost related to funeral
3. Outstanding bills, if any
4. Formal debts due to the dead person
5. Insurance on the home of a died individual
6. Additional payments in order to prevent estate assets
Rules relating to probate or confirmation
After valuing the estate in appropriate manner, solicitor requires to fill few forms and send the
same to nearest Probate Registry office. He is also required to pay application fees along with
inheritance tax if any to HMRC. The amount of payment depends on the area you live. After
submission of application probate office will contact you to arrange oath. The same will be
conducted in local probate office or in commissioner for oaths. After attaining probate, an
individual is able to contact the organization which hold deceased asset. Further, the assets are
released once the copy of probate or confirmation letter is received by appropriate authority.
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BIBLIOGRAPHY
Bach S. "Inheritance tax: Limit corporate privileges and spread tax burden." (DIW Economic
Bulletin 5.7 2015) Pp 91-99.
Beyer, G. W. and John K. H. Wills, Trusts, and Estates for Legal Assistants. (Wolters Kluwer
Law & Business, 2015).
Boon A. "The legal professions’ new handbooks: narratives, standards and values." (Legal
Ethics 19.2 2016) Pp 207-233.
Bradley J. A.. "Antemortem Probate Is a Bad Idea: Why Antemortem Probate Will Not Work
and Should Not Work." (Miss. LJ 85 2016) Pp 1431.
Clarke J. "Solicitors as executors: Responsibilities and rewards." (LSJ: Law Society of NSW
Journal 50 2018) Pp 85.
Crown B.C. "Where There's a Will, There's a Way."( SAcLJ27 2015) Pp 222.
Crystal, N. M. Professional Responsibility: Problems of practice and the profession.( Wolters
Kluwer Law & Business, 2017).
Furniss (Inspector of Taxes) v. Dawson D.E.R., Furniss (Inspector of Taxes) v. Dawson G.E.,
Murdoch (Inspector of Taxes) v. Dawson R.S (1984)
Herring J. Legal ethics. (Oxford University Press, 2017).
Hocking P. "Probate registry's transition to digital: What you need to know." (Bulletin Law
Society of South Australia40.8 2018)Pp 28.
Horton D. "Wills Law on the Ground." (UCLA L. Rev. 62 2015) Pp 1094.
Howell D. "Death and taxes." (Tax Professional 2017.29 2017) Pp 24-26.
Kenny P., Samuel R. M., and Daryl J. H. Forced Adoption Support Services: Establishing and
building networks. (Department of Social Services, 2017).
Kleinschmidt J. "Agency and authority of agents." (Encyclopedia of Private International Law.
Edward Elgar Publishing Limited, 2017) Pp 29-39.
Leyland P. and Gordon A. Textbook on administrative law. (Oxford University Press, 2016).
MacKinnon, F. B. Contingent Fees for Legal Services: Professional Economics and
Responsibilities. (Routledge, 2017).
Pan Y. and Chekfoung T.. "Three dimensional norm-based knowledge management for
knowledge intensive business service organizations: an organizational semiotics
perspective." (International Journal of Knowledge Engineering2.1 2016) Pp 50-55.
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