15: The law of gifts and succession law

Question 1

what does “inter vivos” mean

Answer 1

while alive, between the living

Question 2

what is a legatee

Answer 2

a person who receives a legacy

Question 3

is an oral or written statement enough to make a gift effective?

Answer 3

no, there must be transfer of ownership

unless there has been delivery of possession to the donee, then it is effective as a gift

Question 4

if a lender of £3,000 wishes to extinguish the obligation to repay that loan of the borrower, but he has not yet written a deed, will the loan still be considered a loan, or an exempt gift of £3,000

Answer 4

it will remain as a loan, as a deed has not been written

Question 5

what is the difference between transfer of ownership of property at common law vs at equity?

Answer 5

at common law, it requires all formalities to have been completed before transfer of ownership has passed.

at equity, it states that transfer of ownership has passed once the donor has done EVERYTHING IN THEIR POWER to divest themselves from the property, even if the law requires some further tasks.

Question 6

what is an imperfect gift?

Answer 6

when there was an intention to gift property but failed to transfer the ownership of it

Question 7

how can an imperfect gift be perfected after death of the donor?

Answer 7

if the donee becomes the personal representitive/ executor, the imperfect gift will be perfected to them as the donee

Question 8

can a person own property whilst being dead?

Answer 8

no, they are no longer a legal entity and english law does not have ‘ownerless property’

Question 9

what happens to a persons property upon death

Answer 9

absolute ownership is passed to their personal representatives during administration

Question 10

Who has ownership during administration?

Answer 10

the personal representatives

Question 11

during administration, do the legatees have any sort of ownership?

Answer 11

no, but they have a right to the personal representatives for the property to be properly administered

Question 12

once full administered, what is the name for the property left over?

Answer 12

residue

Question 13

what is considered a chose in action during administration?

Answer 13

the legatees right for the personal representatives to properly administer the property

Question 14

what is an assent?

Answer 14

it is the indication that allows the property can be passed to the legatee

Question 15

What are the two types of personal representatives?

Answer 15

executors and administrators

Question 16

what is the difference between an executor and administrator?

Answer 16

an executor is one that is decided from the deceased’s Will to carry out the terms of the Will

an administrator is one appointed from the courts if the Will has not appointed a personal representative

Question 17

upon the deceased death, the personal representatives must receieve a grant of representation before they can act.

what is the grant of representation called for the executor and what is it called for the administrator?

Answer 17

executor - grant of probate

administrator - grant of letters of administration

Question 18

bob died and left a Will, but forgot to include a personal representative - a court will appoint an administrator. what will the grant of representation be called?

Answer 18

grant of letter of administration with Will annexed

Question 19

where is the grant of representation obtained?

Answer 19

probate registry

Question 20

what is the difference in where the executors and administrators derive their authority from?

Answer 20

executors derive their authority from the Will

administrators derive their authority from the court

Question 21

when does the deceased property vest in the executor

Answer 21

the moment of death

Question 22

when does the deceased property vest in the administrator?

Answer 22

at the date of the grant of the letter of administration

Question 23

what are the responsibilities of the personal representatives

Answer 23

1. obtain probate or grant of administration
2. ascertain the assets and liabilities
3. collect any property that was rented/leased, recover any debts owed to the deceased
4. pay off any creditors/ loans
5. distribute the estate

Question 24

when does the administration start and end?

Answer 24

starts the day FOLLOWING the deceased death

ends the day the PR’s discharge themselves from duty

Question 25

what is the term for a Will?

Answer 25

testamentary disposition

Question 26

when a person dies with a Will, what are they called to have died?

Answer 26

died testate

think intestate = no will, flowchart etc

Question 27

how do wills work if you have properties in multiple countries? what are these wills called?

Answer 27

you have a will in each relevant country

these are called concurrent wills

Question 28

is the testators initials on the will enough to show a valid will?

Answer 28

yes, thumbprints too - so long as the intention that it was for the will is there

Question 29

can a 17 year old make a testamentary disposition?

Answer 29

no, 18+ with sound mind

Question 30

how many witnesses do you need when signing a will?

Answer 30

two people

Question 31

can a person be both a witness and a legatee?

Answer 31

no.

Question 32

can you change a will after the person has died and what is this called?

Answer 32

yes, it is called a deed of variation

Question 33

what are the 5 types of legacy?

Answer 33

specific legacy
general legacy
pecuniary legacy
demonstrative legacy
residuary legacy

Question 34

what is the difference between pecuniary legacy and demonstrative legacy?

Answer 34

pecuniary is the gift of money

demonstrative is the gift of money from a specific fund or bank account

Question 35

what is:

• ademption
• disclaimer
• abate

of the gift?

Answer 35

ademption is when the gift no longer exists or does not belong to the deceased at the date of death

disclaimer is when the legatee refuses to take the gift

abate is when the legatee loses the gift from paying off debts or liabilities etc

Question 36

if you want to destroy a will by physical destruction, does the testator have to do it or can someone else destroy it on behalf of the testator?

Answer 36

someone else can so long as they are in presence of the testator

Question 37

if someone dies in intestacy, and the worth of their estate is well over £250k, how much does their spouse/civil partner get and how much do their kids get?

Answer 37

spouse/civil partner:

• personal chattels
• 250k legacy
• 1/2 of the residue

kids:
- 1/2 of the residue

Question 38

donatio mortis causa

Answer 38

gifting an asset to a person before their death, but is condition upon their death and takes effect on death

Question 39

what is a statutory trust in terms of dying in intestate?

Answer 39

when the legatee is a minor and receives legacy intestate