Estates Flashcards
Realty
Any real estate asset
Personalty
Any asset other than real estate
Imperative form
Immediate donative intent
What are the two restrictions on testamentary freedom?
- To a surviving spouse there are minimum financial benefits you must leave a spouse
- Some restrictions on what to leave a dependant
The kinds of will substitutes that we discussed
- Inter vivos gift
- Inter vivos trust
- Gift mortis causa
- Joint tenancy
- Assets where you designate a beneficiary
The one exemption to capital gains tax
One’s principle residence
Two types of trust and what they are
Inter vivos - established during lifetime
Testamentary - established by your WILl
Two examples of partial intestacy
- Will doesn’t provide for all the assets to be disposed of
- Where there is a trust, but the trust provision don’t say what happens following the death of the life tenant
The general age to make a valid will and the exceptions to that rule
18, unless the testator is or has been married, has not been married but the will is made in contemplation of marriage, or the testator is able to make a priviledged will (ie, member of the forces)
Requirements to have a valid will
- Testator could form necessary mental capacity to make a will
- They had actual knowledge of the contents of the will and approved the will
- Was signing the will voluntarily, free of any undue influence or other forms of fraud and was not operating under certain mistaken beliefs
Principles from Banks in assessing testamentary capacity
- An appreciation of the nature of the will and its affects
- An appreciation of one’s assets and liabilities
- An appreciation of any and all possible legal and moral claims that might be made against the estate
- the absence of any mental illness that might in some way influence the terms of the will
Incorporation by reference
a legal doctrine pursuant to which an unattested, existing document may be incorporated into a will with the effect that the contents of the document areas legally binding as if they had been inserted into the will itself.
Doctrine of republication
operates to give a new date to the will unless that is contrary to the testator’s intentions (in other words, the will is republished)
Abatement
The proportionate reduction of amounts or quantities of testamentary gifts when the assets of the asset are insufficient to satisfy the payments of debts or gifts in full
Equitable doctrine of conversion
Where a testator has sold or disposed of property that WAS the subject matter of a gift in the will, the testator has converted the property into other property and the original gift in the will therefore adeems
Doctrine of lapse
States that when a beneficiary predeceases the testator (or dies before vesting of the gift) the gift to that beneficiary fails to take effect or lapses
The rule against perpetuities
The idea that you cannot ‘rule from beyond the grave’ your interest in property has to VEST at some point – can’t hold it in perpetuity.
The rule in Rule in Sauders v Vautier
where a person is sui juris (mentally capable and over the age of majority) and is solely interested in property that has vested in him or her absolutely, that person having reached the age of majority can demand a conveyance or transfer of property.
Incapacity to manage property
If a person is either;
1. Not able to understand the info relevant to making a decision in the management of their own property
2. Not able to appreciate the reasonably consequences of a decision
Incapacity to manage personal care
- Not able to understand the information that is relevant to making a decision concerning their own health care, nutrition, clothing, hygiene or safety or
- Not able to appreciate the reasonable consequences of a decision or lack of
Statutory guardians or property
Appointed where the person is in a psych facility and a certificate of incapacity has been issues OR a person may request an assessor to perform an assessment of the person’s own capacity to determine if the public guardian and trustee SHOULD become a guardian of property
Court appointed guardian of property
S. 22(1) - appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.
Realization of the estate
the obligation on the estate trustee to identify what the assets are and to bring them under the estate to allow them to be dealt with - to keep them in specie or liquidate them… the liquidation is sometimes referred to as the realization
Grant and its 2 types
A form of certificate issued by the court that evidences the estate trustees authority (two main kinds: person dies WITH a will vs. person does without)
Disappearance in circumstances of peril
a. The applicant has not heard of or from the individual since the disappearance
b. To the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual since the disappearance
c. Applicant has no reason to believe the individual is alive
d. There is sufficient evidence that the individual is dead
Seven year absence (to declare someone dead)
If applicant has been absent for at least seven years and if the following 4 requirements have been satisfied:
- The applicant has not heard of or from the individual during the seven year period
- To the applicant’s knowledge, after making reasonable inquiries, no other person has heard of or from the individual during the seven years period
- The applicant has no reason to believe the individual is alive
- There is sufficient evidence to find the individual is dead
Criteria to prove a lost will is a valid will
Need to consider:
- Has due execution of the alleged will been established?
- Have the contents of the alleged will be satisfactorily proved?
- Does the available evidence REBUT the presumption that the testator INTENDED to revoke the will? (ie, by doing a new will)
