3a. Probate - Wills Flashcards
1
Q
Execution of wills
What two things must a person have and what one thing must they do to make a will?
A
Have:
- Capacity at the time the will was made, and
- Intention to make a will
and
Execute the will in accordance with the required formalities.
2
Q
Execution of wills
Who has the burden of proving a testator did not have mental capacity, and what is the statutory test for this?
A
The person alleging the testator lacked capacity must show at the material time, the person is unable to make a decision for themselves because of an impairment or disturbance in functioning of the mind
3
Q
Execution of wills
What is the statutory test a reiteration of and what three things did this require the testator to understand at the time of execution?
A
Banks v Goodfellow, which required the testator to understand:
- The nature of the act of making a will
- The extent of their property (what they’re giving away and the rough value of their assets)
- The claims which they ought to give effect to even if they subsequently do not
4
Q
Execution of wills
In most cases, when is the material time?
A
When the testator signs the will
5
Q
Execution of wills
What is the exception to the rule that the material time is when the testator signs the will?
A
If the testator did not have mental capacity at execution, but did when giving instructions to the drafter, the testator will be deemed to have acted with capacity if:
- The will was prepared in accordance with the instructions, and
- At execution, the testator at least understood they were signing a will for which instructions had previously been given
6
Q
Execution of wills
What two things are required to satisfy the intention to make a will?
A
Testator must have:
- General intent to make a will, and
- Specific intent to make that particular will, i.e. they knew and approved of the contents
7
Q
Execution of wills
Who has the burden of showing the testator did not have intention, and how might they show this?
A
The person challenging their intention, and they may do so by showing the testator acted due to fear, fraud, undue influence, or mistake
8
Q
Execution of wills
In what three circumstances does the presumption that if the testator acted with capacity, they had specific intent not apply?
A
- Testator is blind or illiterate
- Will is signed on testator’s behalf
- Suspicious circumstances where the will drafter substantially benefits from the will
To deal with the suspicious circumstances, make sure they are dealt with in the attestation clause OR using an affidavit of knowledge and approval.
9
Q
Execution of wills
What are the three formalities for a valid will?
A
- In writing
- Signed by the testator (or some person in T’s presence and at T’s direction such that it is clear T intended to give effect to the will)
- Signed by two witnesses each in the presence of the testator, but not necessarily in each other’s presence (or their previous signature is acknowledged in T’s presence)
10
Q
Execution of wills
What is an attestation clause and what is required if one is missing?
A
A signed clause confirming the formalities have been met. If one is not provided, the proponent of the will (i.e. the person offering it into probate) must provide proof these formalities were followed
11
Q
Execution of wills
In what situation is a special attestation clause required, and what must it show?
A
A special attestation clause is required where the testator is illiterate, and it must show that the will was read to T and he understood and approved the contents, i.e. he had the specific intent to make that particular will
12
Q
Execution of wills
In a situation where someone signs the will on the testator’s behalf, is the will invalid if this person is also a witness?
A
No
13
Q
Execution of wills
What are the two requirements where someone signs the will on the testator’s behalf?
A
- Testator must be present when signature is made
- Testator must indicate to the witness that the signature has been put there at his request
14
Q
Execution of wills
Do the witnesses need to see the contents of the will or know that the testator is signing a will?
A
No
15
Q
Execution of wills
For a document to be incorporated by reference into a will, what two requirements must be met?
A
- Document must exist at the date of the will
- Document must be referred to in the will
Documents expressed to be created after the fact, e.g. lists of items will not be included
16
Q
Alteration, amendment, and revocation of wills
When will a general alteration be valid?
A
If it can be proved it was made before execution, provided that the will reads naturally
17
Q
Alteration, amendment, and revocation of wills
What is the situation where a will has words crossed out and it can’t be proved that the alteration occurred before execution or that it was made with the same formalities as the will, i.e. writing signed and witnessed?
A
The original gift applies
18
Q
Alteration, amendment, and revocation of wills
What is the presumption given to unattested alterations?
A
They are presumed to have been made after execution, unless merely filling in a blank space in a will form
19
Q
Alteration, amendment, and revocation of wills
What is a codicil?
A
Brief document that adds to, amends, or partially revokes an executed will
Can be used to remedy a gift which was void because the beneficiary witnessed the will
20
Q
Alteration, amendment, and revocation of wills
What are the three requirements of a codicil?
A
- Must make reference to the will
- Must satisfy the formalities of a will, i.e. writing signed and witnessed
- Clause should be included confirming the unamended part of the will
21
Q
Alteration, amendment, and revocation of wills
What are the four methods of revocation?
A
- Destruction of the will with intent to destroy
- Express revocation by a will/codicil
- Implied revocation (later will revokes earlier will)
- Marriage
22
Q
Alteration, amendment, and revocation of wills
What is the effect of a testator marrying after executing a will?
A
The will is revoked unless it appears, from the will, that the testator was expecting to marry a particular person and they intended that all or part of the will should not be revoked by that marriage
A will in contemplation of marraige should: (i) name the testator’s partner, (ii) identify the specific ceremony and (iii) state whether the testator wants the will to remain effective on marraige.
23
Q
Alteration, amendment, and revocation of wills
What is the effect of divorce on a will?
A
Will is partly revoked as to the appointments/gifts to the former spouse/civil partner as they are treated as having died on the date of divorce/dissolution
The remainder of the will is valid
24
Q
Alteration, amendment, and revocation of wills
What gift provisions in a will will be relevant upon divorce/dissolution, and why?
A
Substitutional gifts conditional upon the spouse/civil partner predeceasing the testator, because they are deemed to have done so
25
# Alteration, amendment, and revocation of wills
What is required to exempt a will from these divorce/dissolution rules?
Contrary intention expressed in the will
26
# Alteration, amendment, and revocation of wills
When can a will be revoked?
At any time before the testator's death
27
# Alteration, amendment, and revocation of wills
What are the two ways a testator can revoke a will through deliberate act?
1. Executing a later will/codicil
2. Destruction with intent
28
# Alteration, amendment, and revocation of wills
What is the extent to which a later will/codicil will revoke an earlier will?
Only to the extent that it is inconsistent with or merely repeats the terms of the earlier will
29
# Alteration, amendment, and revocation of wills
How is a will revoked by destruction?
Burning, tearing, or otherwise destroying the will by the testator *(or someone at T's direction and in their presence)* **with the intention of revoking the will**
30
# Alteration, amendment, and revocation of wills
What is the situation if only part of a will is destroyed?
Whether or not the will is fully revoked, or only revoked to the extent of the part that was destroyed will depend on the importance of the part which was destroyed, e.g. the signature page being destroyed will revoke the entire will if intent to revoke is evident
31
# Alteration, amendment, and revocation of wills
Regarding intention to revoke, what is the presumption if a will is found **mutilated** at the date of death?
It is **rebuttably** presumed to have been revoked with the testator's intent
32
# Alteration, amendment, and revocation of wills
When can extrinsic evidence be used to determine amendments to a will?
1. When the alteration was made by a third party
2. For conditional obliterations to determine and give effect to the original gift
33
# Alteration, amendment, and revocation of wills
How does the court-applied doctrine of **dependent relative revocation** save a will?
If the testator's intention to revoke the will was conditional on a future event, and the event did not take place, the original will*, even if destroyed,* may be valid if it can be reconstructed
34
# Alteration, amendment, and revocation of wills
What are mutual wills?
Where two or more people make wills with the same clauses conferring reciprocal benefits, *further to an agreement* between them to make such wills and **not revoke them without the consent of the other**
35
# Interpretation of wills
Unless a contrary intention is shown in the will, when are gifts in wills treated as being given, and what is the *general* meaning of this?
The moment of death, which means that a gift is *generally* treated as being of the object the testator has on their death
36
# Interpretation of wills
What wording will indicate that the gift is of the object the testator has **when the will was made?**
***My*** before an **individual** object, e.g. my car, or my watch
## Footnote
If that **specific** item is not in the estate, the gift adeems. This is avoided by use of the words *the car/watch I own on my death*
Does not apply to collections - apply from death even if 'my' is used.
37
# Interpretation of wills
As of when are the **beneficiaries** in a will determined?
The date of **execution***, subject to class closing rules*
38
# Interpretation of wills
What is a specific legacy?
A gift of a **specified part of the estate**, e.g **my** BMW car with registration ABC1234
39
# Interpretation of wills
What is a general legacy?
A gift of a generic item which does not identify a particular item, e.g. ***a*** BMW car
40
# Interpretation of wills
What occurs if the item described in the general legacy is not in the estate?
The beneficiary can require the executors to purchase the item if there is sufficient funds
41
# Interpretation of wills
What is a pecuniary legacy?
A gift of cash
42
# Interpretation of wills
What are the two ways gifts can fail?
1. Ademption
2. Lapse
43
# Interpretation of wills
Under the doctrine of ademption, in what three situations will a *specific* gift **adeem**?
1. No longer part of the testator's estate
2. Subject to a binding contract for sale
3. No longer meets the description in the will
**Only applies to specific legacies. Does not apply to general legacies**
44
# Interpretation of wills
When will a gift fail by **lapse**?
If the beneficiary **predeceases** the testator
45
# Interpretation of wills
What will prevent a gift from failing by lapse?
A substitutional gift in the will accounting for the situation where the beneficiary predeceased the testator
46
# Interpretation of wills
What happens where there is no substitutional gift?
The gift falls into the residue
47
# Interpretation of wills
What happens if a residual gift lapses?
It passes under the rules of intestacy
48
# Interpretation of wills
Regarding objects, i.e. people, what is the exception to the general rule that the will is construed at the date of death?
Will is construed at date of execution, as to objects, e.g.:
A gift of "all my shares in ABC plc to the eldest son of John" is a gift of however many shares the testator had **at the date of death** to whoever the eldest son of John was **at the date of execution**
49
# Interpretation of wills
Where a gift is to two or more people as **joint tenants**, i.e. **jointly**, what is required for the gift to lapse?
**All** joint tenants must predecease the testator. If not, the gift passes to the surviving tenants in proportionate shares.
This does not apply where a gift is simply split and given in **equal shares**. It has to be joint. *Think right of survivorship*
50
# Interpretation of wills
What is the special rule where a gift is made to a testator's **child** or other **lineal** descendant, e.g. grandchild, and the beneficiary child or descendant predeceases the testator?
The gift will pass to the issue of the beneficiary if they are living, and unless a contrary intention is shown.
Note this **only** applies where a testator gives a gift to their **issue or lineal descendant** who:
(1) Predeceases the testator and
(2) Leaves living issue of their own.
It does not apply to gifts to parties who aren't issue or lineal descendants.
51
# Interpretation of wills
A gift to a beneficiary will fail if the beneficiary or their spouse/civil partner witness the will. Does this invalidate the entire will?
No, just the gift to the beneficiary witness fails
52
# Interpretation of wills
In what situation will a gift to a beneficiary not fail where that beneficiary witnesses the will, and why?
Where there are at least two other witnesses who are not beneficiaries or spouse/civil partner, because the formal requirement that a will have two witnesses will be satisfied irrespective of the beneficiary acting as a subsequent witness
53
# Interpretation of wills
What two groups does a gift to **children** apply to, and what one does it not?
Applies to:
1. Natural children
2. Adopted children
But **not** stepchildren, unless adopted.
54
# Interpretation of wills
When will a class normally close?
When at least one beneficiary has a vested interest
55
# Interpretation of wills
If a class closes, do beneficiaries who have not satisfied their contingency still qualify?
Yes, as long as they are **living when the class closes**
56
# Interpretation of wills
Why does the inclusion of the word **each of** change the effect of the class closing rules?
The class closing rules operate to close a class off so that the pool of assets can be divided up among vested and contingent holders, and of course paid to vested beneficiaries immediately. E.g. "£5,000 to the children of John" requires those beneficiaries to be determined to know how many ways to divide the **total pool** of £5,000.
Whereas, "£5,000 to **each** of the children of John" does not require the class to close at all to determine how much each will receive. Each will receive the £5,000.
57
# Interpretation of wills
However, in the absence of a provision to the contrary, where **each of** is used, when does the class close?
At the testator's death, and if there are no class members eligible, the gift will fail and not continue until the at least one class member is eligible
58
# Interpretation of wills
How can the class closing rules be excluded?
By an express provision in the will
59
# Intestacy
In what two situations will the rules of intestacy apply?
1. Deceased died without making a will, or at least a valid will
2. Deceased's will does not dispose of all of their property
60
# Intestacy
For a spouse to receive their beneficial entitlement, for how long must they survive the deceased?
28 days
61
# Intestacy
What is the spouse's entitlement where there are no issue, i.e. children?
The entire estate
62
# Intestacy
What are the spouse's three entitlements where there are issue?
- Personal chattels
- £322,000
- Half the residue absolutely
| The issue split the other half of the residue
63
# Intestacy
What is a spouse with issue's other option with regard to the matrimonial home?
They can opt to take the matrimonial home *(or deceased's interest in it if they were tenants in common)* in satisfaction of their entitlement to chattels, 322k, half the residue, and the **children will take the residue (after IHT)**
*If the property is worth more than the entitlement, the spouse must pay this **equality money** to the estate*
64
# Intestacy
What is the list of eight beneficiaries who will take intestate property if there is **no spouse**, and how is this dealt with?
As soon as a beneficiary falling a category in the below list is identified, subsequent beneficiaries are ignored:
1. Issue of the intestate
2. Parents *(equally if both alive)*
3. Full brothers or sisters (on statutory trust)
4. Half brothers and sisters (on statutory trust)
5. Grandparents *(equally if both alive)*
6. Full uncles and aunts (on statutory trust)
7. Half uncles and aunts (on statutory trust)
8. The **Crown** as *bona vacantia*
65
# Intestacy
How will members of a class of beneficiaries take their share, and what are the two conditions, one of which is required?
They will take their shares equally, as long as they:
1. Reach 18, or
2. Marry before 18
66
# Intestacy
What happens if a potential beneficiary (i.e. a beneficiary with a contingent interest) who was living at the intestate's death, dies before their interest vests?
Their **issue** take the deceased parent's share
67
# Intestacy
What happens if a potential beneficiary (i.e. a beneficiary with a contingent interest) who was living at the intestate's death, dies before their interest vests, but they have **no issue**?
The estate will be administered as if that beneficiary has never existed
68
# Intestacy
For the purposes of intestacy, who are deemed to be an adopted child's parents?
The adoptive parents. Not the natural parents.
69
# Property passing outside the will and/or intestacy
Can the following rules be varied by the terms of the will?
No
70
# Property passing outside the will and/or intestacy
What are the six categories of property that do not form part of the deceased's estate?
1. Donationes mortis causa (death-bed gifts)
2. Discretionary pension scheme death benefits
3. Life insurance policies writtenin trust (for 3rd party's benefit)
4. Statutory nominations: max £5,000 to friendly/industrial/provident societies
5. Property held as beneficial joint tenants *(remember IHT still payable)*
6. Life interests in trust property *(passes according to that trust)*
71
# Property passing outside the will and/or intestacy
Why do life interests not pass under intestacy?
Because a life interest vests in the remainderman upon the death of the life interest holder
72
# Property passing outside the will and/or intestacy
Even though property owned under a joint tenancy, life interests in trust property, and gifts with reservation of benefit do not form part of the estate for succession purposes, for what purposes are they considered part of the estate?
IHT
73
# PRs
What two groups of people does the term **personal representative** include?
* Executors
* Administrators *(intestate estates)*
74
# PRs
Although anyone can be named as an executor, what is it advisable to ensure?
That they are willing and able to take up the position
75
# PRs
Whilst they can be named an executor, what two groups will not be granted probate?
1. Minors
2. Mental incapacity
76
# PRs
Why does dissolution of a marriage render the appointment of a spouse ineffective?
Because the spouse is deemed to have died on the day of dissolution*, unless a contrary intention is included in the will*
77
# PRs
Until when is a person free to renounce their right to a grant of probate?
Until they have accepted office or otherwise intermeddled in the estate
78
# PRs
How does an executor **accept office**?
By either **taking a grant of probate** or **intermeddling** in the estate
79
# PRs
What is intermeddling in the estate?
Anything which shows an intention to accept office, even notifying a deceased's bank of the death
80
# PRs
What are the four requirements to renounce?
1. In writing
2. Signed by executor
3. Contain statement they have not intermeddled
4. Signed by a *disinterested* witness
81
# PRs
What does it mean that renunciation is **all or nothing**?
An executor cannot renounce part of the office, it must be all, or he must accept the appointment
82
# PRs
Once renounced, what cannot be reclaimed without court permission?
The right to probate, i.e. can't restart the appointment of executor
83
# PRs
Does an executor renouncing their position as executor have any bearing on their position as trustee, if they also hold one?
No
84
# PRs
Instead of renouncing, the executor can have **power reserved**. What does this mean?
They will not be involved *for now*, but if circumstances change, e.g. another executor dies or renounces themselves, the executor who reserved power can **apply** for a grant of probate at a later stage
85
# Grants of representation
What is a grant of representation?
a court order conferring authority on the personal representatives to carry out the administration
86
# Grants of representation
In a non-contentious case, what is the monetary threshold which must not be exceeded for property in a savings scheme to be capable of being obtained **(at the institution's discretion)** with just a death certificate, i.e. grant of administration not needed?
£5,000
## Footnote
In practice, these statutory provisions are rarely required because most banks and financial institutions adopt their own policy and will release sums (commonly up to £15,000) without sight of the grant.
87
# Grants of representation
What else can be sold with just the production of a death certificate, without requiring a grant of administration or providing the right to sell?
Chattels
88
# Grants of representation
If the personal representatives of an estate hires a solicitor, who is the client?
The PRs
89
# Grants of representation
What are the four types of grant?
1. Probate
2. Letters of administration *with will annexed*
3. Letters of administration
4. Grant *de bonis non*
90
# Grants of representation
When is grant of probate obtained, and only to whom can it be made?
A grant of probate is obtained when the deceased left a **valid will** and it can only be made to the **executors**
91
# Grants of representation
What are the minimum and maximum amount of executors that can obtain a grant of probate?
**One** and **four**
92
# Grants of representation
To whom is notice of a grant of probate generally given?
Any executors for whom power is being reserved
93
# Grants of representation
When is an application for **letters of administration with the will annexed** made?
When there is a valid will, but some problem concerning the appointment of executors
94
# Grants of representation
What are three of the reasons for which a letters of administration with the will annexed may be needed?
1. Appointment of executor not correctly drafted
2. Will is valid, but deceased did not appoint an executor
3. Executor died before the deceased, renounced, or is unable (minor/incapable) or unwilling to act
95
# Grants of representation
What is the order of entitlement to a grant of letters of administration with the will annexed?
1. Executor
2. Trustee of the residuary estate
3. Any residuary beneificary, or, where there is a partial intestacy, a beneficiary of the estate under intestacy
4. PRs of anyone in (3) other than a trustee/life tenant of the residue
5. Any other beneficiary or a creditor
6. PRs or anyone in (5)
96
# Grants of representation
In what situation will a beneficiary not be entitled to apply for a grant of letters of administration with the will annexed?
If the gift fails due to the beneficiary or their spouse witnessing the will.
*However, they can still apply in a different capacity, e.g. as a person entitled on partial intestacy.*
97
# Grants of representation
What is the minimum number of administrators required where there is a minor beneficiary, or life interest under the will?
Two
98
# Grants of representation
In contrast to executors under probate, in a letters with will annexed situation, what will not cause the right to renounce to be lost, and why?
Intermeddling in the estate, because there are creases to be ironed out with regard to how the estate should be administered, so it is not possible for a role to crystallise by intermeddling
99
# Grants of representation
What is meant by a person applying for letters of administration with the will annexed to **clear off**?
It means that in the application, the person applying has accounted for those having a **superior** right to the grant, e.g. by confirming their disinterest or renunciation
## Footnote
Applicants don't need to explain why a person in the same category (i.e. with an equal entitlement) isn't making the application.
100
# Grants of representation
When is an application for just **letters of administration** made?
If the deceased dies intestate or leaves a will but **all the gifts** have failed
101
# Grants of representation
What is the order of entitlement for letters of administration?
1. Surviving spouse or civil partner
2. Child of the deceased
3. Father and mother of the deceased
4. Full siblings
5. Half siblings
6. Grandparents
7. Full aunts and uncles
8. Half aunts and uncles
Issue of (2), (4), (5), (7) and (8) included where their parent has pre-deceased
## Footnote
If no one above can apply, Crow can apply claiming bona vacantia.
If the Crown doesn't apply, a creditor, or other perosn who doesn't receive a benefit (but would have if the estate was larger) may apply.
102
# Grants of representation
What is the right to letters of administration of a PR representing someone with an entitlement to a grant?
The same as the person they represent
103
# Grants of representation
However, **unless the spouse was beneficially entitled to the estate**, who has priority over the PRs of a surviving spouse who died before obtaining a grant?
All relatives in the order of entitlement, i.e. issue down to half uncles/aunts
104
# Grants of representation
For letters of administration, what is the minimum number of administrators required (1) generally, and (2) where there is a minor beneficiary or life interest under the will, and what is the maximum number of administrators?
1. One
2. Two
3. Four
105
# Grants of representation
What is a grant *de bonis non* and to whom is it granted?
A second grant made to allow the completion of the administration of the deceased's estate following the death of the sole or last surviving PR, and is granted to the **person who would have been entitled had the original PR never taken the grant**
106
# Grants of representation
What is the exception to this where a grant de bonis non will not be required, and logically when does this **not** apply, and why?
In a chain of representation situation, where the sole or last surviving **executor** dies and that executor's executor takes a grant of probate, the **executor** of estate B will automatically take over the execution of estate A. They are **not able to refuse this**.
Logically this cannot apply where the deceased in estate A dies intestate, because there is **no executor** in this situation. There is an **administrator and this exception will not apply**, so a grant de bonis non will be needed.
107
# Grants of representation
In relation to all grants, what occurs where one of the executors/administrators is a minor and there are other executors/administrators?
The grant is made to the adult PRs*, with power reserved for the minor in the case of a grant of probate*
108
# Pre-grant procedure
What must be paid by the PRs before a grant can be obtained?
IHT
109
# Pre-grant procedure
What is the **voluntary** scheme banks and institutions can agree to concerning release of estate funds?
In their discretion, the deceased's bank can release the money owed to HMRC to satisfy the inheritance tax before a grant
110
# Applying to the court
What must be included in an application for a grant of probate, or letters with will annexed?
* Online application or Form PA1P
* Application fee and price per sealed grant required
* Original will/codicil (if testator made one)
* Form of renunciation (if an executor is renouncing)
* Affidavit evidence
* Power of attorney (if an attorney is applying)
* Certified copy of the death certificate
* IHT 421 (if estate isn't excepted)
111
# Applying to the court
What is required if the application includes the will, but the will does not have an attestation clause?
Affidavit of due execution from a witness to the will or other person present when the will was executed
112
# Applying to the court
What is required if the application includes the will, but the will has obliterations, interlineations or other alterations?
Affidavit confirming whether these existed at the date of execution
113
# Applying to the court
In order to apply for letters of administration, what must the applicant have?
| I.e. letters of administration, where there is no will
A **beneficial interest** under the intestacy rules
114
# Dealing with HMRC
Within how long after the end of the month of the deceased's death must PRs deliver an account to HMRC?
12 months
| However, interest accrues from **six months** on IHT owed
115
# Dealing with HMRC
What is the discount in the market value for tax purposes offered by HMRC in the case of **co-owned** (1) residential property and (2) investment property, in recognition of the difficulty in selling a part interest in land?
1. 15% for residential
2. 10% for investment
| Not available when the co-owner is the deceased's spouse/civil partner
116
# Dealing with HMRC
What is a **small estate**?
An estate which does not exceed the nil-rate band of £325k
| Exempt from IHT and no formal account is necessary
117
# Dealing with HMRC
What is an **exempt estate**?
An estate worth less than £3 million where the net chargeable estate does not exceed the nil-rate band of £325k
| Does not apply if over £100k in foreign assets
## Footnote
Net chargeable estate is the value after deducting liabilities, and spouse and charity exemptions
118
# Dealing with HMRC
What are the factors which disqualify an estate from being excepted?
1. Deceased made a GROB that subsists at death
2. Estate includes either more than one trust interest, or, a single trust interest worth >£250,000 (and isn't passing to spouse)
3. Foreign assets are worth more than £100,000
4. Value of chargeable lifetime transfers in the last 7 years exceeds £250,000
119
# PR duties
What must PRs do?
Take reasonable steps to preserve the deceased's estate and reaslise on any investments
120
# PR duties
What is the duty of care which applies to PRs in addition to trustees, and what is this in addition to?
PRs must act with **reasonable care and skill** taking into account any **specialist knowledge**, in addition to the fundamental duties to act in the **best interest of beneficiaries**
121
# PR duties
The PRs’ liability for what will typically be excluded in a will?
Breach of duty of care
122
# PR duties
Is a PR liable for loss from a fellow PR's breach of duty?
Not unless PR was negligent in allowing the breaching PR to engage in the conduct which led to the breach
123
# PR duties
What must the court be satisfied of before it can, at its discretion, relieve a PR from liability for breach of *any* duty?
That the PR acted **honestly and reasonably** and **ought fairly to be excused** for the breach of trust and omitting to obtain directions of the court in the matter.
*Same as with trustees*
124
# Administrative powers of PRs
*On to Administrative powers of personal representatives:*
What are the **eleven** powers a PR has?
1. Sell, charge of lease estate property
2. Appropriate assets
4. Insure estate property
3. Invest *(same as with trusts)*
4. Charge if professional (provided not acting alone and co-PRs give reasonable consent) & if lay/lone professional PR (if express power in will) [can always reimburse reasonable expenses]
5. Delegate powers to an agent *(in writing and agent provided with written policy statement)*
6. Appoint trustees (to give good receipt for gifts to minors)
7. Accept receipt from parents/guardians
8. Maintain a minor *(same as with trusts)*
9. Advance capital *(same as with trusts)*
10. Limited scope to run/manage sole trader business or sell as a going concern within a year
125
# Administrative powers of PRs
What is **appropriation**?
The use of an asset to satisfy a legacy/interest in the estate, **provided the beneficiary consents** *(unless consent expressly not required in will)* and no ***specific*** beneficiary is affected
126
# Administrative powers of PRs
Can PRs carry on a sole trade business of the deceased?
Not unless the will provides for it
127
# Administrative powers of PRs
In what circumstance only is a PR liable for the act or omission of an agent to whom they have delegated?
If they fail to use reasonable care appointing the agent
128
# Administrative powers of PRs
Whilst PRs can invest in most things, what two standard investment criteria must be met?
Investment is:
1. **Suitable** for the estate
2. **Diversified**
129
# Administrative powers of PRs
As they apply automatically under the Trustee Act when a gift with the right to receive income is made to a minor, what is required to override the provisions regarding **maintaining a minor**?
## Footnote
*Maintenance, education, benefit*
An express provision in the will
130
# Administrative powers of PRs
What discretionary power do PRs have if the estate includes a gift to a minor and the gift includes the right of the minor to receive **income**?
The trustees can decide to use this income for the minor’s **maintenance**, **education**, or **benefit** until the minor turns 18
| Use means directly apply toward, **not** pay to the minor
## Footnote
If not used, PRs must accumulate for the minor until 18, where it is added to the capital. Even if contingent, entitled to income after 18
131
# Administrative powers of PRs
What is the minor's entitlement upon turning 18, if they still have a contingent interest?
They are entitled to income arising after their 18th birthday only, but income accumulated before and not used to maintain accrues to the **capital** of the trust
132
# Administrative powers of PRs
To whom *may* PRs **advance** funds, what is the amount they may be advanced, and who must consent?
Anyone with a **vested or contigent** interest in the **capital** of the estate can be advanced up to their entire presumptive share, **subject to the consent of anyone with a life interest in the estate**
| Entitlement is **half** of share if trust before October 2014
## Footnote
A life interest holder's consent is needed because their income is based off the value of the estate which the PRs seek to reduce by advancing
133
# Administrative powers of PRs
What interests give an interest in income, and which give an interest in capital?
- Interest in **income** comes from vested or contingent, but not remainder interest
- Interest in **capital** comes from vested, contingent, or remainder interest
134
# Administrative powers of PRs
If an advance is made on a contingent interest which subsequently fails, does the beneficiary have to repay?
No
## Footnote
PRs may be liable for breach of duty if they acted unreasonably
135
# Administrative powers of PRs
Whilst a **sole PR** can give valid receipt for the **proceeds** of sale of land, what is required for the actual **transfer** of land *(and shares)*?
All PRs must join together
136
# Protection of PRs
What is the liability of PRs to any unpaid beneficiary or creditor, and how can this be avoided?
PRs are personally liable, even if the beneficiary or creditor was unknown at the time of distribution, **unless they comply with section 27 of the Trustee Act**
137
# Protection of PRs
What are the steps that must be taken under section 27 of the Trustee Act for a PR to protect themselves from liability in the case of an unpaid beneficiary or creditor?
Place adverts in the London Gazette, a paper local to the trust or relevant property, and any other appropriate publication, and request any interested person contact the PRs' solicitor.
PRs must wait at least **two months** before distributing.
138
# Protection of PRs
What are the PRs' four options when a **known** beneficiary or creditor cannot be found?
1. Pay their entitlement into court and distribute the rest
2. Distribute everything with an indemnity from the beneficiaries *(risky because indemnity is worthless if beneficiary has no funds)*
3. Seek a Benjamin order
4. Purchase insurance against the risk
139
# Protection of PRs
What is a Benjamin order, and what is the extent of the protection it affords to PRs?
A court order which gives the PRs permission to distribute the estate based on an assumption set out in the order, e.g. that the missing beneficiary is presumed dead. This gives full protection to the PRs.
140
# Protection of PRs
If there could be a possible claim under the Inheritance (Provision for Family and Dependants) Act 1975, how long should PRs wait to distribute, and why?
Six months, because a claim cannot be made without court permission after this time
141
# Collecting and realising assets
What is a **solvent** estate?
An estate with enough funds to pay expenses related to **funeral and execution of the estate**, as well as **debts/liabilities**
| Irrespective of whether there are enough funds to satisfy **legacies**
142
# Collecting and realising assets
If the will provides they should not be paid from the residue, what are the three sources that debts owed to unsecured creditors are paid from?
1. Property specifically charged with/given in payment for debts
2. Pecuniary legacy funds
3. Specific legacies
143
# Collecting and realising assets
What is **marshalling**, and who can it be invoked by?
Marshalling is invoked by a **disappointed beneficiary** *(whose **specific legacy** has been **used to satisfy a debt**)*, and it allows them to be **compensated**
144
# Collecting and realising assets
What does it mean when property is given **free of mortgage**?
The mortgage must be paid out of the **residue** to the extent available
145
# Post-death changes
How may a beneficiary **disclaim** their entitlement, and what precludes them from being able to do so?
Orally or in writing*, unless they have already accepted benefit*
| Must be in writing for IHT and CGT purposes
146
# Post-death changes
Where does a disclaimed gift go?
Into the residue*, or into partial intestacy if the gift is the residue*
147
# Post-death changes
Does disclaiming a gift prevent the same person from receiving property under intestacy rules?
No*, and it could potentially be the exact same property*
## Footnote
*Consider disclaimer to be rejecting the **status as beneficiary** under a will, not rejecting the property.*
148
# Post-death changes
What is the main disadvantage of a disclaimer, and what is a way to overcome this?
The disclaiming beneficiary has no control over the ultimate destination of the gift.
This can be overcome by use of a **variation** *(allows B to change who receives the gift)*
## Footnote
Disclaimer is **all or nothing**. Variation can be of part of a gift.
149
# Post-death changes
What does it mean for a variation to be **effective** for tax purposes, and what are the three conditions for this?
The variation is read back to the date of death as if the deceased had left the property to the new beneficiary.
Variation must be:
1. In writing
2. Made within **two years** of death
3. **Not** made for monetary consideration
## Footnote
If conditions not met, the failed variation will be deemed a disposal by the **original beneficiary** for CGT purposes
150
# Post-death changes
Unlike disclaimer, in what situation can a variation still be made?
When the original beneficiary has accepted a benefit
151
# Payment of legacies
What are the methods with increasing levels of formality which PRs must use to vest gifts in beneficiaries when the gift is of:
1. Chattels
2. Company shares
3. Land
* **Chattels**: Items can be delivered, in exchange for receipt, and insurance then cancelled
* Company **shares**: Stock transfer form
* **Land**: **Assent** in writing, and insurance then cancelled *(B needs to register their interest with HMLR)*
152
# Payment of legacies
Unless the will provides otherwise, who bears the costs of transferring assets?
The beneficiary
153
# Payment of legacies
Beneficiaries are entitled to income from property gifted to them arising after what?
The deceased's death
154
# Payment of legacies
When does the doctrine of abatement arise, and what does it provide?
When assets of a deceased person are not sufficient to fully satisfy all creditors, their debts **abate** i.e. are reduced, proportionally, and the creditor has no choice but to accept this lower value
## Footnote
Abatement also applies to any specific legacy except where a priority is given
155
# Ascertaining the residue
What is the tax presumption given to specific gifts of (1) UK property and (2) non-UK property?
Specific gifts of UK property are deemed free of tax, unless the will states otherwise.
The opposite presumption applies to non-UK property.
156
# Ascertaining the residue
What does free of tax require in practice?
PRs must pay off any tax liabilities **before** distributing assets to beneficiaries
157
# Ascertaining the residue
What are the four ways a PR can be authorised to receive remuneration for their services, in exception to the general rule that they are **not entitled to do so**?
1. A legacy given to an executor
2. Express clause in the will *(usually for professional PRs)*
3. Beneficiaries *(of the source of funds used to pay the PR)* consent
4. Court permission
158
# Estate accounts
What are the three accounts which generally make up the **estate accounts**?
1. Income account
2. Capital account
3. Distribution account
159
# Estate accounts
Where does ***income*** that relates to the period **before death** but is received **after death** go?
Capital account
160
# Estate accounts
At this stage, how are the PRs discharged from liability?
1. PRs endorse the accounts and send to the residuary beneficiaries
2. Residuary Bs endorse the accounts
3. Residuary Bs formally discharge PRs with agreement to indemnify them against all claims and demands *(again, can be worthless if Bs have no money)*
## Footnote
If B refuses to endorse, PRs can ask the court to approve, or can pay the objecting B's share into court
161
# Beneficiary's rights and remedies
Until administration is complete, what does a beneficiary not have?
B does not have any legal or equitable interest in the deceased's assets
| They merely have a right to have the estate properly administered
162
# Beneficiary's rights and remedies
What are the two ways a disappointed beneficiary can recover loss from the PRs?
1. Personal action
2. Tracing
163
# Beneficiary's rights and remedies
What are the two ways the PRs can be absolved in a personal action*, even if they would otherwise be personally liable?*
1. If they acted honestly and reasonably, and ought fairly to be excused, or
2. Beneficiaries consent
164
# Beneficiary's rights and remedies
What is tracing, and in what two situations is the right to it lost?
The right of the beneficiaries to trace and recover property from the estate from **PRs or subsequent purchasers**.
The right to trace is lost if the purchaser is a **bona fide purchaser for value without notice**, or it would otherwise be inequitable to allow tracing.
165
# Inheritance (Provision for Family and Dependents) Act 1975
What are the grounds to make a claim to the court under the 1975 Act, and what is the effect?
The terms of a will can be set aside or an **intestacy can be varied** if the deceased was domiciled in England and Wales and **did not make reasonable financial provision for the applicant**
166
# Inheritance (Provision for Family and Dependents) Act 1975
Within what time of what event must an application under the 1975 Act be made?
Within six months of the grant of representation to the PRs*, or later with court permission*
167
# Inheritance (Provision for Family and Dependents) Act 1975
What are the five categories of people who will qualify to make a claim under the 1975 Act?
1. Surviving spouse or civil partner *at the date of death*
2. Former spouse or civil partner *who has not remarried* (unless clean break divorce)
3. Child of the deceased or person treated as a child of the family (unless able-bodied adult in full employment)
4. Person who was being maintained *(via significant contribution toward reasonable needs)*
5. Person living with deceased as partner for entire two-year period before death
168
# Inheritance (Provision for Family and Dependents) Act 1975
What is the standard for reasonable financial provision when it comes to a **spouse**?
Financial provision which is **reasonable in *all* the circumstances**, whether needed for maintenance or not
169
# Inheritance (Provision for Family and Dependents) Act 1975
In their discretion, in what circumstance can the court apply the **spouse** standard to former spouses?
If the death occurs within 12 months of the divorce decree and no final order has yet been made in the divorce proceedings
170
# Inheritance (Provision for Family and Dependents) Act 1975
For all other applicants who aren't spouses or former spouses qualifying for the spousal standard, what is the standard?
Financial provision which is **required for maintenance** such that they can **live decently and comfortably according to their situation**
171
# Inheritance (Provision for Family and Dependents) Act 1975
What are the general guidelines when making a claim under the 1975 Act?
1. Applicant's financial resources and needs
2. Other applicant's financial resources and needs
3. Beneficiaries' financial resources and needs
4. Obligations and responsibilities deceased has towards applicants
5. Size and nature of net estate
6. Physical or mental disability of applicant and beneficiaries
172
# Inheritance (Provisions for Family and Dependents) Act 1975
What is included in the specific guidelines for spouses/civil partners in claims under the 1975 Act?
1. Age of spouse
2. Duration of marraige
3. Applicant's contribution to welfare of the family
173
# Inheritance (Provision for Family and Dependents) Act 1975
What is included in the specific guidelines for former spouses/civil partners in claims under the 1975 Act?
What may the former spouse have reasonable exected to receive in divorce proceedings
174
# Inheritance (Provision for Family and Dependents) Act 1975
What is included in the specific guidelines for claims made by other applicants under the 1975 Act?
1. Cohabitee: age/length of co-habitation/contribution to welfare of family
2. Deceased's child: manner in which was/might be educated/trained
3. Treated as child: manner in which was/might be educated/trained; basis for maintaining
4. Person maintained: basis (how long/extent); assumed responsibility?
175
# Inheritance (Provision for Family and Dependents) Act 1975
What occurs when the court approves an application under the 1975 Act?
The estate is administered according to the terms of the court order, and not the will or intestacy
176
# Inheritance (Provision for Family and Dependents) Act 1975
In the event of a successful application under the 1975 Act, what are the court's four options under their wide discretion?
1. Transfer property
2. Payment of a lump sum
3. Payment of income
4. Settlement of property on trust
