SQE1 · Subject page 9 · 7 min read

SQE1 FLK2 subject notes: validity, revocation and interpretation of wills, intestacy, property outside the estate, grants of representation, the duties and protection of personal representatives, the 1975 Act and inheritance tax.

What this subject covers

The SRA specification divides the subject into three parts:

• Wills and intestacy: validity (capacity, knowledge and approval, undue influence, formalities), executors, alterations, revocation, interpretation and failure of gifts, the intestacy rules, and property passing outside the estate.
• Probate and administration: the need for a grant, the Non-Contentious Probate Rules 1987, valuation, excepted estates, paying inheritance tax, the duties, liabilities and protection of personal representatives, distribution, and claims under the Inheritance (Provision for Family and Dependants) Act 1975.
• Taxation: inheritance tax on lifetime and death transfers, exemptions and reliefs, and income tax and capital gains tax during the administration.

Ethics questions in this subject often involve capacity, gifts to the solicitor, and conflicts between family clients.

Key principles

Making a valid will

• Capacity: the test is the common law test in Banks v Goodfellow: the testator must understand the nature of the act and its effects, the extent of the property, and the claims to which she ought to give effect, with no disorder of mind poisoning her affections. The Mental Capacity Act 2005 test does not replace it for wills.
• Knowledge and approval is presumed for a capable testator who duly executed the will, but where a beneficiary prepared it or there are other suspicious circumstances, those propounding the will must prove it.
• Formalities (Wills Act 1837, s 9): in writing; signed by the testator (or by another in her presence and by her direction) with intent to give effect to the will; signed or acknowledged in the presence of two witnesses present at the same time; each witness signs or acknowledges in the testator's presence.
• Witness beneficiaries: a gift to a witness or the witness's spouse or civil partner fails, but the will stands (s 15).

Changing and revoking a will

• Alterations after execution have no effect unless executed like a will (s 21); if the original words are still legible they stand.
• Revocation (s 20) is by a later will or codicil, by a signed writing executed like a will, or by destruction by the testator (or another in her presence and by her direction) with intent to revoke.
• Marriage or civil partnership revokes a will unless it was made in expectation of that marriage and intended to survive it (s 18). Divorce or dissolution does not revoke the will, but the former spouse is treated as having died on the date of the final order (s 18A).

Gifts that fail

• Lapse: a gift fails if the beneficiary dies first, but a gift to the testator's child or remoter descendant who leaves issue passes to that issue (s 33).
• Ademption: a specific gift fails if the item is no longer in the estate at death.
• Abatement: if the estate is insufficient, residue is used first, then general legacies abate rateably.
• Commorientes: where the order of deaths is uncertain, the younger is presumed to have survived the elder (Law of Property Act 1925, s 184); for inheritance tax they are treated as dying at the same moment.

Intestacy

Under the Administration of Estates Act 1925, s 46:

• Spouse or civil partner and issue: the spouse takes the personal chattels, the statutory legacy (fixed net sum) with interest, and half the residue absolutely; the issue take the other half on the statutory trusts. The spouse must survive by 28 days.
• Spouse, no issue: the spouse takes everything.
• No spouse: issue on the statutory trusts; then parents; then brothers and sisters of the whole blood; then the half blood; then grandparents; then uncles and aunts; then the Crown.
• The statutory trusts give a share to each child who reaches 18, with the issue of a child who died first taking that child's share.
• A cohabitant takes nothing on intestacy, but may claim under the 1975 Act.

Property outside the estate

Joint tenancy property passes by survivorship; a life policy written in trust belongs to its trust beneficiaries; discretionary pension death benefits are paid by the scheme trustees. None of these is governed by the will.

Grants and administration

• An executor obtains probate; if there is a will but no proving executor, the grant is letters of administration with the will annexed; on intestacy, letters of administration. Rules 20 and 22 of the Non-Contentious Probate Rules set the order of entitlement.
• An executor may renounce (normally final; retraction needs the court's permission) or have power reserved so as to join in later.
• Personal representatives collect the assets, pay funeral and testamentary expenses, debts and tax, then distribute. A mortgage debt is borne by the property charged unless the will shows otherwise (s 35).
• Protection: section 27 notices (Gazette and local newspaper, at least two months) protect against unknown creditors; waiting six months from the grant protects against 1975 Act claims.

The 1975 Act

Applicants include a spouse or civil partner, a former spouse who has not remarried, a cohabitant of two years, a child, a person treated as a child of the family, and a dependant. The time limit is six months from the grant. The spouse standard is reasonable provision whether or not needed for maintenance; for everyone else it is reasonable provision for maintenance (Ilott v The Blue Cross).

Inheritance tax

• A lifetime gift to an individual is a potentially exempt transfer: it becomes chargeable only if the donor dies within seven years, uses the nil rate band before the death estate, and is taxed with taper relief after three years. The donee is primarily liable.
• A gift into most trusts is immediately chargeable at the lifetime rate on the excess over the nil rate band.
• The nil rate band is 325,000 pounds; any unused proportion passes to a surviving spouse's estate on a claim. The residence nil rate band (up to 175,000 pounds) applies where a home passes to direct descendants, tapering away for estates over 2 million pounds.
• Exemptions: spouse or civil partner, charity, the annual exemption of 3,000 pounds (one year's carry forward), small gifts of up to 250 pounds per person, and normal expenditure out of income. Leaving at least 10 per cent of the baseline amount to charity reduces the death rate from 40 to 36 per cent.
• Tax on death is due by the end of the sixth month after the month of death, and tax on land may be paid by instalments.

Conduct points

• If a client wants to leave a significant gift to the solicitor preparing the will, the solicitor should advise independent advice and decline to act if the client refuses (paragraph 6.1 of the SRA Code of Conduct for Solicitors).
• Instructions must come from the client, not from relatives who bring her; the solicitor should see the client alone where there is any risk of undue influence (paragraph 3.1).

Worked example

Ben dies a widower, leaving a will which gives his watch to his nephew, 20,000 pounds to his friend, and the residue to his two children equally. One child died last year, leaving a son. The watch was sold before Ben died.

1. The gift of the watch has adeemed: the nephew receives nothing.
2. The gift of residue to the child who died first does not lapse: under section 33 it passes to that child's son.
3. The executors take a grant of probate, place section 27 notices, pay the debts and any inheritance tax, and wait six months from the grant before distributing in case of a 1975 Act claim.
4. If, after debts, there were only 10,000 pounds and no residue, the friend's legacy would abate to 10,000 pounds.

Scope follows the SRA's SQE1 Functioning Legal Knowledge Assessment Specification (FLK2, Wills and the Administration of Estates). The notes are our own summary, not SRA material. Law of England and Wales as at 1 September 2026 (the SRA assesses the law as it stands four calendar months before the first assessment in a window); tax figures are those in force on that date.