A candidate emailed us last month with a question that comes up constantly. The stem described a testator who signed his will at the kitchen table while his neighbour watched, then carried the paper next door so the neighbour's wife could sign it too. Four answer options. Two of them looked plausible. He picked the wrong one, and he could not work out why.
That is Wills and the Administration of Estates in a nutshell. The law is not conceptually difficult — but it is unforgiving about detail, and SQE1 FLK2 examiners know it. This subject rewards candidates who can run a mechanical checklist under time pressure. Below is the checklist we teach, section by section.
Validity in SQE1 FLK2: capacity, intention and section 9 formalities
Every will question starts in the same place: is this document valid? Three limbs, always in this order.
Capacity. The common law test in Banks v Goodfellow (1870) still governs. The testator must understand the nature of the act and its effects, understand roughly the extent of the property being disposed of, comprehend and appreciate the claims of those he might be expected to provide for, and have no disorder of mind that perverts his sense of right. A will that is rational on its face and duly executed attracts a presumption of capacity — so watch for facts that rebut it, such as a diagnosis of dementia or an unexplained radical departure from earlier wills.
Knowledge and approval. Ordinarily presumed once capacity and due execution are shown. The presumption falls away where the testator is blind or illiterate, where the will was signed by someone else on his direction, or where suspicious circumstances exist — classically, where the person who prepared the will takes a substantial benefit under it. Do not confuse this with undue influence, which in the law of wills must be positively proved; there is no presumption of undue influence, however close the relationship. Coercion, not persuasion, is the standard.
Formalities under s.9 Wills Act 1837. Learn this as five separate boxes. The will must be in writing and signed by the testator (or by someone else in his presence and at his direction). It must appear that the testator intended by his signature to give effect to the will. The signature must be made or acknowledged in the presence of two or more witnesses present at the same time. Each witness must then attest and sign, or acknowledge his signature, in the presence of the testator. Note the asymmetry that catches everyone out: the witnesses must both be there when the testator signs or acknowledges, but they need not be in each other's presence when they sign.
Back to the kitchen-table scenario: the testator signed in front of one witness only, and the second witness never saw him sign or acknowledge. Section 9 fails. Nothing later cures it. The estate passes on intestacy.
Revocation, alterations and the divorce trap
A valid will can stop being operative in several ways, and FLK2 loves testing the edges.
Marriage or the formation of a civil partnership revokes an existing will under s.18 Wills Act 1837, unless the will was expressly made in expectation of that particular marriage. Divorce or dissolution does something narrower under s.18A: the will remains valid, but the former spouse is treated as having died on the date the marriage ended. So the appointment of the ex-spouse as executor fails, and any gift to her fails, but the rest of the will marches on — and the gift usually drops into residue rather than passing on intestacy.
Revocation by destruction under s.20 requires both the act and the intention. Burning, tearing or otherwise destroying — carried out by the testator, or by someone in his presence and at his direction. Symbolic gestures are not enough; crossing out the whole will in pen, or writing "revoked" across the front page, does not destroy it. Where a will was last known to be in the testator's possession and cannot be found after death, a presumption of revocation arises, though it is rebuttable.
Alterations made after execution are ineffective under s.21 unless separately executed, and the original wording stands if it is still "apparent" — meaning readable by ordinary means. If the words have been obliterated so thoroughly that they cannot be read, the gift generally fails. A codicil, properly executed, can amend, confirm or revive a will; confirmation republishes the will as at the date of the codicil, which occasionally changes who takes under a class gift.
Why gifts fail: ademption, lapse and the witness-beneficiary rule
Here is where the single best answer format really bites. The will is valid, the clause is clear, and yet the named beneficiary receives nothing. Run through the failure list:
Ademption. A specific gift ("my shares in Redwood Ltd", "my cottage at Hilltop Lane") fails if the asset is no longer in the estate at death. Sold, given away, destroyed — the beneficiary takes nothing and has no claim to the proceeds. General and pecuniary legacies cannot adeem.
Lapse. A beneficiary who predeceases the testator takes nothing. But check s.33 Wills Act 1837: where the gift is to the testator's child or remoter descendant who dies first leaving issue alive at the testator's death, the gift passes to that issue per stirpes, unless the will shows a contrary intention. Gifts to a friend or sibling get no such rescue.
Section 15. A gift to an attesting witness, or to the spouse or civil partner of an attesting witness, is void — though the will itself remains validly executed. And under the Wills Act 1968, the rule is disregarded if the will was duly executed without counting that witness's attestation, so a will signed by three witnesses can still benefit one of them.
Also on the list: disclaimer, forfeiture where the beneficiary has unlawfully killed the testator, and uncertainty of subject matter or object. Where a residuary gift fails entirely, that share passes on partial intestacy under the Administration of Estates Act 1925.
Administration of estates: grants, PR powers and protection
Executors derive authority from the will and their powers run from the moment of death; the grant of probate merely confirms it. Administrators, by contrast, have no authority until the grant issues. That distinction alone answers a surprising number of questions.
Three grants to distinguish: probate, where a valid will appoints willing executors; letters of administration with will annexed, where there is a will but no proving executor, with entitlement ordered under rule 20 of the Non-Contentious Probate Rules 1987; and simple letters of administration on intestacy, ordered under rule 22, beginning with the surviving spouse or civil partner, then children, then parents, then whole-blood siblings, and so on. Two administrators are needed where the estate includes a minority interest or a life interest.
Personal representatives hold wide statutory powers: to sell, to appropriate assets in satisfaction of an entitlement under s.41 AEA 1925 (with the beneficiary's consent), to insure, to invest under the general power in the Trustee Act 2000, and to delegate — always subject to the statutory duty of care.
Two protective steps are heavily examined. Advertising under s.27 Trustee Act 1925 in the London Gazette and a newspaper circulating locally, allowing at least two months, protects PRs from personal liability to unknown creditors and beneficiaries — it does not stop those claimants pursuing the assets in the beneficiaries' hands. And where a beneficiary cannot be traced, the safe route is a Benjamin order from the court rather than a quiet decision to distribute anyway.
Remember too the six-month window for claims under the Inheritance (Provision for Family and Dependants) Act 1975, running from the date of the grant. Distributing early is not unlawful, but a PR who does so risks personal liability if a claim succeeds.
Inheritance tax essentials for FLK2
You are not being asked to be a tax adviser. You are being asked to spot the exemption and apply the right rate. Build the death estate, deduct debts and funeral expenses, then apply exemptions — the spouse or civil partner exemption and the charity exemption are unlimited (subject to the restriction where the surviving spouse is not UK domiciled and no election has been made).
Then the nil rate band of £325,000, plus any transferable unused band from a predeceased spouse, plus the residence nil rate band where a qualifying residential interest passes to direct descendants — tapered where the estate exceeds £2 million. The death rate is 40%, reduced to 36% where at least 10% of the baseline amount goes to charity. Lifetime transfers made within seven years come back into account, with taper relief reducing the tax (not the transfer) on gifts made more than three years before death. Business property relief and agricultural property relief have been subject to reform, so check the position current at your exam date rather than relying on old notes.
On mechanics: IHT on the death estate is generally due six months after the end of the month of death, with an instalment option over ten years for land, businesses and certain shareholdings. Many estates qualify as excepted and need no full account.
How to drill this subject before SQE1
Three habits that lift marks quickly. Write out the s.9 elements from memory every morning for a week until you can do it in under sixty seconds. Build a one-page "why did this gift fail?" flowchart and test yourself against it using real question stems. And whenever you meet a date in a stem — a marriage, a divorce, a sale of the cottage, a gift made five years ago — ask immediately what legal consequence that date carries. Dates in this subject are never decoration.
One last habit: read the final sentence of the question before the facts. "Which of the following best describes the executor's liability?" sends you somewhere quite different from "Who is entitled to the cottage?"
If you would like structured support, CELE SQE has been teaching all 13 FLK1 and FLK2 subjects since the very first SQE sitting in 2021. Our SQE1 courses run at £3,720 (long-term), £2,750 (mid-term) and £1,750 (short-term), with single-FLK options at half those prices and £150 off for early birds or bookings within three months of the exam. The SQE1 question bank subscription is £575 per month, and textbooks are £950 for the full set or £570 for a single FLK. Questions are welcome any time — WeChat SQE100, [email protected], or celebar.com.