Intestacy and validity of wills

Question 1

When will a gift in a will fail?

Answer 1

A gift in a will fails if a beneficiary or their spouse acts as witness. (But the will is still valid)

Question 2

What is the test for whether the testator has testamentary capacity?

Answer 2

1. Did T understand the nature of the will and its effects?
2. Did T understand the extent of the property they were disposing of by the will?
3. Did T understand the claims to which they ought to give effect?

Question 3

Which categories of people are permitted to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

Answer 3

The current spouse/civil partner
Former spouse/civil partner provided they have not entered into a new marriage/civil partnership agreement
A cohabitee of the deceased (living in the same household as the deceased for 2 years before the date the deceased died)
A child of the deceased
Any person who was treated as a child of the family
Any person being maintained by the deceased

Question 4

When do the intestacy rules operate?

Answer 4

Where there is no will at all, or
The will is totally/partially invalid/unenforceable

Question 5

Order of entitlement, intestacy rules:

Answer 5

If there is a surviving spouse/civil partner AND no issue: the spouse/civil partner receives all the estate.
If child/children (or grandchildren from a child/children) but no surviving spouse/civil partner: children inherit on the statutory trusts (contingent on reaching 18).
Surviving spouse AND child/children (or grandchildren from a child/children who died before the intestate): spouse receives 270k and all of the deceased’s personal chattels and 50% of the residue. The children receive the remaining 50% of the residue.

If no surviving spouse/children, estate will be distributed to:
The deceased’s parents/parent (on equal shares)
Deceased’s brothers/sisters on the statutory trusts
Deceased’s half-brothers/sisters on the statutory trusts
Deceased’s grandparents/grandparent
Uncles/aunts
Uncles/aunts of half-blood
The Crown

Question 6

For how long must the surviving spouse outlive their deceased spouse to be entitled under the intestacy rules?

Answer 6

28 days.

Question 7

Definition of issue:

Answer 7

All ‘lineal’ descendants of the deceased: legitimate/illegitimate children, adopted children.
NOT stepchildren.

Question 8

Statutory trusts:

Answer 8

Starting principle is equal shares. If there is more than one person in a particular category, all the persons in that category with a vested interest will receive equal shares.

Apply to all people entitled on intestacy but NOT parents/grandparents

Question 9

What factors must be present for a DMC?

Answer 9

Contemplation of death - short timespan
Intention that the gift will only take effect if the donor dies
Delivery of the gift

Question 10

Property owned by the deceased as a beneficial joint tenant. What happens when one joint tenant dies?

Answer 10

Under the principle of survivorship, when one JT dies their interest in the property automatically passes on to the surviving JTs.

The interest under a JT never becomes part of the deceased’s estate.