Distributing property/Gifts in valid wills Flashcards
What property passes outside of a will (5)
1) property owned jointly as beneficial joint tenant - cannot be overridden by will, passes through survivorship and joint tenancy
2) Life Assurance policies held on trust or already assigned to beneficiaries
3) Pension Scheme death benefits
4) Nominated property (eg small deposits in certain bank accounts)
5) Life interests in trust property
Steps for distributing property under a will?
1) identify property passing outside of the will
2) identify all assets passing under the will
3) pay off debts and funeral expenses
4) distribute assets in accordance w terms of will
What is the basic rule for all assets passing under the will?
Wills Act 1837, s 24
“Every will shall be construed with reference to the real estate and the personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will”.
Therefore, covers all assets owned when testator died
What is a devise
gift of real estate
What is a legacy
gift of personal property
What is the difference between a specific legacy and general legacy
SL = gift of a clearly identified specific asset eg "BMW with XXXXXX reg number", usually uses 'my ....' GL = gift that doesn't identify a specific asset, usually says 'an' instead of 'my'
What is the difference between pecuniary legacy and residuary legacy
PL = gift of cash RL = gift of everything left over
5 situations where a gift fails
1) ademption - specific legacy adeems if the asset is no longer owned by the deceased
2) lapse - beneficiary dies before testator
3) beneficiary(or their soupose) is a witness
4) divorce
5) forfeiture - gifts to murderers fail, manslaughter too but subject to relief
When and how do the Class Closing Rules apply
class gifts eg “50k to children of Ian” can be problematic so CC rules exclude potential beneficiaries not alive upon death of testator.
