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FLK 2 WILLS > Distribution under the will > Flashcards

Distribution under the will Flashcards

1
Q

how old must the testator be?

A

over 18 unless they have privileged status

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2
Q

What are the three requirements for a valid will?

A

1) Capacity
2) Intention
3) Formalities

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3
Q

the testator must have the requisite mental capacity to meet the capacity requirements of a will - where can the statutory test for capacity be found?

A

ss 1-3 MCA
a person lacks capacity in relation to a matter if at the material time he’s unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain

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4
Q

what is the common law test for capacity?

A

‘soundness of mind, memory and understanding’ - the testator must understand the nature of their act, the extent of their property and any moral claims on their estate

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5
Q

Does the code of practice that accompanies the MCA indicate that the statutory test is compatible with the common law position and doesnt create a new test?

A

yes

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6
Q

The common law test prevails over the MCS for testamentary capacity. True or false?

A

true

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7
Q

what type of intention must the testator have in order to make a will

A

general intention to make a will
specific intention to make the particular will in question

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8
Q

where section states the formalities that the will must comply with?

A

s9 Wills Act

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9
Q

what are the formalities in s9 WA?

A

1) will must be in writing and signed by the testator or some other person in his presence and by his direction

2) the testator must have intended to give effect to the will

3) the will must be signed in the presence of two witnesses

4) each witness must attest and sign the will in the presence of the testator

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10
Q

Both witnesses have to be present for the testators signature, but do they both have to be present for each others signature?

A

no

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11
Q

if the will contains an attestation clause - what presumption does this raise?

A

it raises a rebuttable presumption that the formalities have been complied with

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12
Q

unexecuted docs can be incorporated into the will if the are//

A

clearly identified in the will and were in existence at the time the will was executed

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13
Q

is it possible for a will which complies with capacity, intention and formalities to be challenged on grounds of mistake, duress or undue influence?

A

yes

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14
Q

where a challenge is made on grounds of duress or undue influence, what will the challenger need to prove?

A

that the testator was acting under coercion/undue influence and not of their own volition

there’s a heavy BOP and generally there must be no other explanation for the testators behaviour than a form of duress

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15
Q

what is a general legacy?

A

a gift of an item irrespective of whether the deceased owned that item at death

i give 50 shares in ABC Plc to X

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16
Q

what is a specific legacy?

A

a gift of a particular asset owned by the deceased at death

i give all my shares in ABC Plc to C

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17
Q

what is demonstrative legacy?

A

a general gift paid out of a specific fund

I give £100 to be paid from my barclays account

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18
Q

what is pecuniary legacy

A

a gift of a fixed sum of money

i give £100 to X

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19
Q

what is residuary legacy

A

the whole, or part, of what remains of a persons estate once all gifts, debts taxes and other costs have been paid

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20
Q

I give all my shares in ABC Plc to X - what legacy is this

A

specific legacy

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21
Q

I give £100 to be paid from my barclays account - what legacy is this?

A

demonstrative legacy

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22
Q

I give £100 to X - what legacy is this

A

pecuniary legacy

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23
Q

I give 50 shares in ABC Plc to X - what legacy is this

A

general legacy

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24
Q

what is the principle which states that the testator is always able to revoke their will at any point before their death

A

testamentary freedom

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25
Q

what are the three ways a will can be revoked?

A

destruction
revocation by a later will/codicil
marriage/civil partnership

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26
Q

revoking the will via destruction

A

the testator ‘burning, tearing or otherwise destroying’ the will … or someone else doing so in the testators presence and by their direction revokes a will as long as the testator intends this revocation by the act of destruction

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27
Q

revocation by a later will/codicil - what are the two ways this can be done

A

1) the testator can include an express revocation clause - I hereby revoke all my former wills

28
Q

without a revocation clause, the later will only revokes the former will to what extent

A

to the extent that the later will is inconsistent with the former will

29
Q

a will can be revoked by marriage/civil partnership

A

a testator marrying or entering into a civil partnership will automatically revoke any will made previously - unless the testator makes it expressly clear that the will should have effect after the marriage or where the marriage is itself the conversion of a civil partnership.

30
Q

what is meant by codicil

A

susbsequent valid alterations to a will are known as codicils

31
Q

in order for codicils to be valid, they must..

A

be properly executed, complying with all of the same formalities as the original will

32
Q

who must any manuscript amendments to the will be signed by

A

the testator
two witnesses

or they can add their initials next to the amendment

if this is done it will raise a presumption that the changes were made prior to the execution of the will

33
Q

where an alteration is invalid, and the original wording remains apparent - which wording will be admitted to probate

A

the original wording of the will is admitted to probate (ie that remains valid)

34
Q

where an alteration is invalid, but the original wording is not apparent, the will is normally admitted to probate with the original wording ‘obliterated’ - what does this mean

A

the clause can’t take effect

35
Q

where an alteration is invalid, but the original wording is not apparent, the will is normally admitted to probate with the original wording ‘obliterated’ (the clause cant take effect)

what is the exception to this

A

if the obliteration is accompanied by an attempt to substitute other wording - in which case the court may hold that the obliteration was conditional on the substitution taking effect

36
Q

as the substituted wording is ineffective, the original wording is not obliterated provided that there is evidence of …

A

evidence of what the original wording was

37
Q

the court will consider any evidence available to establish the original wording, including a copy of the original will - true or false

A

true

38
Q

failure of legacies (gifts)

A

lapse
uncertainty
ademption
beneficiary witnessing the will
disclaimer
divorce/dissolution of civil partnership
forfeiture

39
Q

A gift will usually fail if the beneficiary predeceases the testator - true or false

A

true

40
Q

A gift will usually fail if the beneficiary predeceases the testator however if the beneficiary is the issue of the testator, instead of lapsing the gift will usually pass to..

A

the beneficiary’s issue unless the will expressly excludes this option

41
Q

what is the presumption where two people die simultaneously

A

the younger is presumed to have survived the elder

42
Q

how can a gift fail due to uncertainty

A

a gift will fail either if the objects (beneficiaries) or subject matter is uncertain

43
Q

where the testator makes a specific legacy, it will fail if..

A

that specific item of property isn’t part of the testator’s estate at the time of their death

44
Q

for ademption to apply, there must have been a change of …

A

there must have been a change of substance, not merely a change of name or form

45
Q

what is the ruling on a beneficiary or a spouse witnessing the will

A

if a beneficiary or their spouse witnesses the will - any gifts to the beneficiary will lapse unless there were two witnesses to the will other than the beneficiary or their spouse

46
Q

a solicitor may be negligent if they allow a beneficiary to witness the will - true or false

A

true

47
Q

can a beneficiary disclaim a legacy

A

yes
(ie refuse to accept the legacy if they have yet to take any benefit from it)

48
Q

following divorce or anulment of a civil patnership - why does the gift lapse

A

because following divorce or anulment of a civil partnership, any gift to a former spouse or civil partner is treated as if the spouse or partner had predeceased the testator , therefore the gift lapses

49
Q

following divorce or anulment of civil partnership, any gift lapses, what happens to the remainder of the will

A

it remains unaffected

50
Q

can a beneficiary receive an inheritance from anyone that the beneficiary has been convicted of murdering

A

no

there may be circumstances where the beneficiary could inherit if the beneficiary has been convicted of manslaughter of the testator

51
Q

what does the effect of a failed legacy depend on

A

the type of legacy

52
Q

where a specific, general or demonstrative legacy fails, does the property form part of the residue of the estate?

A

yes

53
Q

where a residuary legacy fails, is their partial intestacy?

A

yes - where possible the courts will interpret wills to avoid a partial intestacy arising

54
Q

under which act can an application be made to the court for reasonable financial provisions to be made

A

IFPDA
inheritance provision for family and dependants act 1975

55
Q

an application to the court can be made by a limited group of people - applicants must fall within one of the categories in s1 IPFDA

what are these categories

A
  • spouse or civil partner of the deceased
  • a former spouse who hasn’t remarried
  • someone who had been in a relationship with the deceased for at least 2 years before the death of the deceased
  • child of the deceased (including one over aged 18)
  • a person who was treated as a child of the family and to whom the deceased stood in the role of parent (this includes people over 18 at the time of death)
  • anyone who was maintained, wholly or partly, by the deceased immediately before their death
56
Q

what is the time limit for an application to be made under s1 IPFDA 1975

A

applications must be made within six months from the issue of the grant

57
Q

is special leave of the court required for an out of time application under s1 IPFDA

A

yes
the court may extend time limits at its unfettered discretion

58
Q

grounds for an application under s1 IPFDA

A

do the will or the intestacy rules make reasonable financial provisions (RFP) for the applicant?

59
Q

what constitutes RFP depends on the applicant, but the test is always subjective on what standards

A
  • surviving spouse standard
  • maintenance standard
60
Q

surviving spouse standard - reasonable financial provision

A

such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance

(applied to claims by the surviving spouse/civil partner only)

61
Q

maintenance standard

A

such financial provisions as it would be reasonable in all the circumstances of the case for he applicant to receive for his (sic) maintenance

applied to claims by anyone other than the surviving spouse or civil partner

62
Q

the guidelines are set out in the legislation - what are the considerations for the court

A
  • financial resources and needs of the applicant immediately and in the foreseeable future
  • obligations owed by the deceased to the applicant
  • size and nature of the deceaseds estate

the court can order periodic payments, lump sums or property transfer

63
Q

Personal Reps - they should consider carefully whether they should distribute the estate before the time to make an application under IPFDA has expired - if they wrongly distribute they could be personally liable - true or false

A

true

64
Q

is it possible for potential applicants to do a standing search to see if a grant has been made

A

yes

PRs may choose to take out insurance against any potential claims

65
Q
A

FLK 2 WILLS (8 decks)

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