Wills and Estate Planning: Essential LPC Guide for Trainees
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Homework type: Essay
Added: 18.01.2026 at 7:45
Summary:
Master Wills and Estate Planning for LPC trainees: validity, formalities, assets outside wills, intestacy, probate, challenges and practical drafting tips.
LPC Wills
The study and practice of wills is a cornerstone of private client work, occupying a central role in English legal education and legal services for individuals and families. A will ensures the orderly distribution of a person’s property after death according to their wishes, has the potential to minimise disputes among survivors, and is a vital tool for tax and estate planning. In the context of the Legal Practice Course (LPC), students must not only appreciate the essential rules and principles but also develop an acute awareness of practical and ethical issues central to drafting, advising and administering wills. This essay explores the fundamental legal and procedural aspects of wills within the framework of the LPC, covering: the nature and purpose of wills; the strict formalities required for their validity; the complexities of assets that fall outside testamentary disposition; the consequences of intestacy; the practicalities of administration; the possibilities and grounds for contesting a will; and the best-practice approaches that are expected of an LPC trainee. Literary and statutory touchstones, illustrative case examples from English law and references to commonly encountered client scenarios in the UK will support this analysis.
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The Nature and Functions of a Will
A will is, fundamentally, a legal declaration by which a person, the testator, directs the distribution of their property upon death. In contrast to gifts made during life (inter vivos), a will does not operate until the moment of death and can always be altered or revoked by the testator during their lifetime, so long as capacity endures. A typical modern will encompasses: - The appointment of executors (or personal representatives, PRs) - Specific gifts (of items or sums) - Residue—the bulk of the estate, often subject to trust provisions - Guardianship directives for minor children - Funeral wishes and other non-binding expressions of intentCareful drafting is crucial to avoid ambiguity, prevent partial or total intestacy, and manage family expectations. Literary tragedies such as “King Lear” echo the importance of clear testamentary intentions and the disasters that flow from uncertainty or disharmony. In the context of tax planning, the testator can use a will to employ available reliefs, trusts, and exemptions to protect family wealth within legal limits.
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Formal Requirements for a Valid Will
Statutory requirements and legal principles: The Wills Act 1837 remains the principal governing statute. For a will to be valid in England and Wales, the testator must be 18 or over, possess testamentary capacity, intend the document to operate as a will, and comply with the strict requirements of execution: - The will must be in writing - The testator must sign it (or direct another to do so in their presence and by their direction) - The signature must be made in the joint presence of two witnesses, who must also sign in the presence of the testatorTestamentary capacity: The classic test in Banks v Goodfellow requires the testator to understand the act of making a will, the extent of the property disposed, and the claims of those who might expect to benefit. Personal circumstances such as age-related decline, dementia, or medication may affect this capacity, and where in doubt, solicitors are advised to obtain a contemporaneous medical opinion—GP or consultant. Practical red flags might include sudden instructions for a new will, especially favouring an unexpected beneficiary, or draft instructions following a recent hospital admission for cognitive decline.
Intention, knowledge and approval: The will must reflect the true intentions of the testator, not those of another. Executors must be particularly careful when dealing with vulnerable clients or those unable to read or sign, ensuring the will is read or explained—preferably with a signed statement or attestation clause confirming understanding and approval.
Formalities of execution: Signature and attestation lie at the heart of validity. Both witnesses should be independent adults (not beneficiaries or their spouses). Modern best practice includes noting the date, location, and witnesses’ details, while an attestation clause strengthens the presumption of due execution for probate.
Defects and remedies: Departure from statutory formalities is usually fatal, as illustrated in cases such as Re Colling, but the courts have limited rectification powers for clerical errors under Administration of Justice Act 1982, section 20. Importantly, evidence (witness statements, drafts, attendance notes) must be preserved where the validity is questioned.
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Revocation of Wills
A will can be revoked by: - Executing a subsequent will or codicil expressly or by inconsistency with an earlier will - Physical destruction by the testator with intent to revoke - Marriage or civil partnership, unless made in contemplation thereofIt is common, as seen in practice, for individuals remarrying to accidentally revoke earlier wills, risking intestacy. Drafters should always include explicit revocation clauses and, where suitable, provisions preserving the will’s operation on subsequent marriage.
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Dispositions Operating Outside the Will
Certain key assets are not controlled by a testator’s will, a reality that LPC students must be vigilant to identify. Joint property: Where jointly owned as joint tenants, the rule of survivorship applies—the property passes automatically to the survivor. This applies to jointly held homes, bank accounts, and investments. The distinction with tenancies in common, where deceased’s share passes under the will or intestacy, must be clarified during client fact-gathering.Nominations and policies: Some savings accounts and employer death-in-service schemes allow nomination of a beneficiary, so the proceeds pass directly, not under a will or intestacy. Life policies written in trust, familiar to many UK policies, bypass probate.
Pensions: Death benefits usually pass at the discretion of pension scheme trustees, though nominations (“expression of wish” forms) greatly influence decisions. It is essential to alert clients to keep nominations up to date, as marriage or divorce can otherwise lead to unintended windfalls to estranged spouses.
Practical strategy: Fact-finding checklists must include joint assets, pension nominations and insurance policy arrangements, as these can constitute much of a client’s wealth and are commonly misapprehended.
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Intestacy – Operation and Implications
Intestacy arises when a person dies without a valid will, or where their will fails to dispose of all assets. The Administration of Estates Act 1925 and the Intestacy Rules provide a rigid hierarchy of entitlement: - Spouse/civil partner - Children - Parents - Siblings - Remoter relatives A contemporary example: If a married deceased leaves a spouse and children, the first £270,000 and personal chattels pass to the spouse, with the remainder split—half to spouse, half among children. Jointly owned property passing by survivorship is not affected by the rules, which can confuse families and lead to disputes over perceived fairness.Common mishaps include unintentional intestacy due to inadequately drafted wills, divorce (which can invalidate certain bequests), or marrying after making a will. Good practice demands updating wills after major life events and incorporating a comprehensive residuary clause.
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Personal Representatives: Appointment and Practicalities
Personal representatives (PRs)—executors named in the will, or administrators appointed under intestacy—bear heavy responsibilities: collecting and valuing assets, paying debts, applying for probate, and distributing the estate. Under the Non‑Contentious Probate Rules, there is a statutory order of who may apply for a grant. If a named executor refuses or proves unsuitable, renunciation or appointment of a substitute is possible. Professional executors, such as solicitors, can provide expertise and neutrality but incur costs and require careful conflict checks. LPC students should always recommend including provision for alternate executors and review for any disqualifying characteristics such as bankruptcy or incapacity.---
Estate Administration: Practical Steps and Financial Considerations
Upon death, PRs must secure property, notify relevant institutions, and arrange for timely valuation of all assets—including those passing by survivorship. Liabilities and funeral costs must be identified and settled. Inheritance Tax (IHT) remains a constant concern; its calculation requires including most property, even that passing outside the will, with spouse and charity exemptions offering strategic relief. Timely valuation and appropriate use of reliefs can avoid unnecessary tax liability. Paying IHT can present liquidity issues, necessitating sales, loans, or use of life policy proceeds. The grant of probate then permits legal transfer and distribution, subject to the preparation of accurate probate papers and supporting evidence. Typical catalogue errors causing delay include missing valuations, incomplete IHT forms, and defective execution evidence.---
Challenging a Will and Available Remedies
Wills may be contested on a number of grounds, each requiring careful evidence gathering and distinct legal treatment: - Lack of testamentary capacity (Banks v Goodfellow remains central) - Lack of knowledge and approval - Undue influence—especially difficult to prove, as in Edwards v Edwards, but will set aside where coercion, rather than mere persuasion, is shown - Fraud/forgery and mistake - Faulty execution Burden of proof typically rests with the party seeking to propound the will, but those alleging undue influence or fraud must meet a high evidential standard. Solicitors should keep thorough attendance notes, medical opinions, and draft histories. Where disputes arise, protective caveats can be entered at the Probate Registry to prevent premature grants. The courts can set aside faulty wills, rectify mistakes, or apply proprietary remedies where clients have acted to their detriment in reliance on promises (as in Gillett v Holt).---
Drafting and Practice Tips for LPC Practitioners
Drafters should always take comprehensive instructions: enquire about all assets, family details, prior wills, health and the client’s aims. Where warning signs emerge—an unusually dramatic change in beneficiaries, or a draft prepared during illness—solicitors must act with heightened caution or recommend independent legal advice. Wills ought to be drafted in clear, unambiguous language, with specific descriptions for gifts and robust residuary clauses. Trust provisions should reflect clients’ needs, whether life interests for a surviving spouse or discretionary trusts for complex families. Witnessing must be conducted with independence and careful recording, and all advice should be fully documented for future scrutiny. Post-execution, clients should be prompted to review and update their wills as circumstances or the law change, and reliability of templates should never replace careful personalisation and professional oversight.---
Special Topics and Contemporary Issues
Recent years have seen the rise of international families and assets. Where property lies abroad, different succession and formality rules may apply, raising the need for local advice and sometimes for mirror wills. While remote witnessing of wills was temporarily permitted during the pandemic, no permanent shift to electronic wills has been enacted; caution is advised. Vulnerable clients merit extra safeguards—medical evidence, independent witnesses, and thorough documentation are essential defenses against later challenge. Tax planning—using gifts, trusts, and policies—is essential but must steer clear of any over-aggressive, artificial, or professionally risky schemes.---
Examination and Answer-Writing Strategy (LPC)
In LPC exams or assessments, effective answers begin by identifying the key legal issues—validity, asset disposition, or challenge. Candidates should state the relevant law (with authorities), then apply the facts clearly, considering both procedure and likely outcomes, and finish with practical advice. Time management benefits from structured paragraphing: issue, law, application, remedies, pragmatic recommendations. Short checklists—of formalities, estate administration steps, and challenge grounds—help ensure no point is overlooked.---
Conclusion
Wills are much more than dry legal documents: they are powerful tools for distributing property, protecting vulnerable beneficiaries, reducing tax, and giving peace of mind—provided they are crafted and administered with care. The interplay of strict formalities, non-testamentary assets, legal rules on intestacy, fiduciary duties of PRs, and possible challenges present a complex mosaic for LPC students and practitioners alike. Success in this field demands clarity in drafting, diligence in fact-finding, readiness to obtain medical evidence, conscientious respect for ethics, and effective communication with all parties. For deeper knowledge, students should consult reputable guides such as “Williams on Wills,” the Wills Act 1837, and up-to-date resources from LexisNexis or Practical Law.---
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