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Will Precedents

Precedents covering the most common scenarios in this area. Drafting notes accompany each clause - incorporating the latest developments like Will drafting considerations for inheritance tax residence nil rate band.

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Our Court of Protection topic covers both property and finance, and health and welfare Court of Protection applications. It’s geared at both the Court of Protection specialist practitioner and the occasional user.

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Topics include beneficial ownership transparency, the Money Laundering Regulations, the Trust Registration Service, obligations relating to data protection and GDPR and offences under the Bribery Act 2010.

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Associated legal terms

Incapacitation

In legal practice, incapacitation describes a person’s inability to make decisions or perform legal acts because they lack the mental or physical capacity required at the relevant time. It is a functional concept, focussing on whether the person can understand, retain, use or weigh information and communicate a decision.

Across the UK and Ireland, the term underpins areas such as capacity to contract, make a will, litigate, consent to medical treatment, or grant a power of attorney. It is closely linked to statutory “lack of capacity” tests and common law rules on mental capacity and undue influence.

In England and Wales, the Mental Capacity Act 2005 provides the primary statutory framework. Scotland uses the Adults with Incapacity (Scotland) Act 2000, while Northern Ireland relies on the Mental Capacity Act (Northern Ireland) 2016. Ireland is governed by the Assisted Decision-Making (Capacity) Act 2015.

Although terminology and statutory tests differ slightly, all jurisdictions apply decision-specific, time-specific assessments and prioritise the person’s autonomy, using the least restrictive alternative. Incapacitation has significant consequences for the validity of transactions, appointment of deputies, attorneys or guardians, and the court’s jurisdiction to make welfare and property decisions.

Spousal share

Spousal share describes, in practice, the portion of property a surviving spouse or civil partner is entitled to on death, or (colloquially) the share allocated on divorce. It is not a defined term in UK or Irish legislation, but a descriptive expression used across succession and family law.

England & Wales: on intestacy, the spouse/civil partner takes personal chattels, a statutory legacy (a fixed sum set by secondary legislation) and some or all of the residue; if there are children or other issue, they take half the residue, otherwise generally the whole estate. If there is a will, there is no fixed spousal share, but the spouse may claim reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

Northern Ireland: a similar intestacy structure applies, but where there are no issue and parents/siblings survive, they may still share the residue with the spouse; statutory legacy amounts are set by order.

Scotland: the concept maps to statutory prior rights (dwellinghouse, furnishings and a cash sum) and legal rights in the moveable estate (one-third if issue exist; one-half if none), whether or not there is a will.

Ireland: the Succession Act 1965 provides a legal right share (one-half if no issue; one-third if issue) against a will; on intestacy the spouse takes all if no issue, or two‑thirds if there are issue.

Vacant succession

Vacant succession describes a deceased person’s estate where there is no known heir or beneficiary entitled to inherit, or where all entitled parties have disclaimed or failed to claim, so no one is administering the estate. It broadly corresponds to “ownerless” estates before they pass to the state or a public authority.

In Scots law, vacant succession is a recognised concept: where there is no heir, the estate ultimately falls to the Crown as ultimus haeres, administered in practice by the King’s and Lord Treasurer’s Remembrancer (KLTR).

In England and Wales and Northern Ireland, the expression is less technical but used descriptively. Estates with no entitled next of kin or beneficiaries are treated as bona vacantia and dealt with by the Crown, Duchy of Lancaster or Duchy of Cornwall, subject to statutory and common law rules.

In Ireland, a similar position applies: estates with no heirs pass as bona vacantia to the State.

Practically, vacant succession issues arise in probate and intestacy, genealogical research, missing beneficiary cases and in advising on Crown or State claims to unclaimed estates, including procedures for late claims and ex gratia payments.
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