15: The law of gifts and succession law Flashcards
what does “inter vivos” mean
while alive, between the living
what is a legatee
a person who receives a legacy
is an oral or written statement enough to make a gift effective?
no, there must be transfer of ownership
unless there has been delivery of possession to the donee, then it is effective as a gift
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
it will remain as a loan, as a deed has not been written
what is the difference between transfer of ownership of property at common law vs at equity?
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.
what is an imperfect gift?
when there was an intention to gift property but failed to transfer the ownership of it
how can an imperfect gift be perfected after death of the donor?
if the donee becomes the personal representitive/ executor, the imperfect gift will be perfected to them as the donee
can a person own property whilst being dead?
no, they are no longer a legal entity and english law does not have ‘ownerless property’
what happens to a persons property upon death
absolute ownership is passed to their personal representatives during administration
Who has ownership during administration?
the personal representatives
during administration, do the legatees have any sort of ownership?
no, but they have a right to the personal representatives for the property to be properly administered
once full administered, what is the name for the property left over?
residue
what is considered a chose in action during administration?
the legatees right for the personal representatives to properly administer the property
what is an assent?
it is the indication that allows the property can be passed to the legatee
What are the two types of personal representatives?
executors and administrators
what is the difference between an executor and administrator?
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
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?
executor - grant of probate
administrator - grant of letters of administration
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?
grant of letter of administration with Will annexed
where is the grant of representation obtained?
probate registry
what is the difference in where the executors and administrators derive their authority from?
executors derive their authority from the Will
administrators derive their authority from the court
when does the deceased property vest in the executor
the moment of death
when does the deceased property vest in the administrator?
at the date of the grant of the letter of administration
what are the responsibilities of the personal representatives
- obtain probate or grant of administration
- ascertain the assets and liabilities
- collect any property that was rented/leased, recover any debts owed to the deceased
- pay off any creditors/ loans
- distribute the estate
when does the administration start and end?
starts the day FOLLOWING the deceased death
ends the day the PR’s discharge themselves from duty
what is the term for a Will?
testamentary disposition
when a person dies with a Will, what are they called to have died?
died testate
think intestate = no will, flowchart etc
how do wills work if you have properties in multiple countries? what are these wills called?
you have a will in each relevant country
these are called concurrent wills
is the testators initials on the will enough to show a valid will?
yes, thumbprints too - so long as the intention that it was for the will is there
can a 17 year old make a testamentary disposition?
no, 18+ with sound mind
how many witnesses do you need when signing a will?
two people
can a person be both a witness and a legatee?
no.
can you change a will after the person has died and what is this called?
yes, it is called a deed of variation
what are the 5 types of legacy?
specific legacy general legacy pecuniary legacy demonstrative legacy residuary legacy
what is the difference between pecuniary legacy and demonstrative legacy?
pecuniary is the gift of money
demonstrative is the gift of money from a specific fund or bank account
what is:
- ademption
- disclaimer
- abate
of the gift?
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
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?
someone else can so long as they are in presence of the testator
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?
spouse/civil partner:
- personal chattels
- 250k legacy
- 1/2 of the residue
kids:
- 1/2 of the residue
donatio mortis causa
gifting an asset to a person before their death, but is condition upon their death and takes effect on death
what is a statutory trust in terms of dying in intestate?
when the legatee is a minor and receives legacy intestate
