intestate succesion

Question 1

intestate def

Answer 1

when a person dies with either an invalid or non existant will
if will to vauge then it will fail to take effect

Question 2

what are the three stages to intestacy distribution?

Answer 2

prior rights(IF RELICT)- THEN COHAB DISCRETIONARY s.29
legal rights( relicts right, if relict and legitim if issue)
Free estate (s.2 succession scot act 1964 )
 if no children but siblings of deceased then 1/2 to each class RELICT lowest on list as assume already received prior real rights

Question 3

S.8(6d) SUCCESION SCOT

Answer 3

if deceased had RELEVENT INTEREST IN DWELLING HOUSE THEN HOUSE PASSES TO IRELICT
but if value exceeds 473k then relict only gets that amount- most receive that amount.
as most relicts have homes co owned so thee deceased relevant interest will only be in their pro indivisio share of the property

Question 4

S.9 SUCCESSION SCOT ACT

Answer 4

FINACIAL PROV

Question 5

s.8(4) succession scot

Answer 5

relict takes first prior right only if ORDINARLIY rRESIDENT
even if home is cco-owened if the relict is not ordinarly resident then they ony own their pro indivisio share. NO RIGHTS TO THE OTHER HALF

Question 6

s8(3) succession scot

Answer 6

PLENISHING RIGHTS If the relict is ordinalry resident the they have a right to furniture and plenishings within dwelling house up to prescribed value of 29 k
MARRIED COUPLE PRESUMPTION OF CO-OWNERSHIP

Question 7

s. 9(1a) and (1b)succession scot

Answer 7

financiala prov prescribed amount
if issue 50k 9(1a)
if non 89k 9(1b)

Question 8

s.9(3) succession scot

Answer 8

to ascertain movable estate left for legal rights this financial prov must be notionally apportioned betweened hertiables and movable

Question 9

example 1

A dies intestate. surved by 2nd wife. separated but not divorced and one son.

Answer 9

only prior rights for relict if ordinarily resident s.8(4)she is not ordinarly resident as separed thus NO PRIOR RIGHTS
FURTHER, under s.8(3) no plenishing right

financial provision up to 50k as there is a child s.9(1b)

Question 10

example 2

a dies intestate survived by husband b and child. estate = bank account 25k and car 5k

Answer 10

s.9(3) to ascertain movable estate left for legal rights this financial prov must be notionally apportioned betweened hertiables and movable

Question 11

EXAMPLE 3

A and B are married and live together. co-own property worth 1,046k. 100k bank loan. A dies intestate.

Answer 11

co-own find A share:
1. bank loan 100k/2= 50k
2. proindiviso share 1046k/2= 523k
secured creditor would then claim there stnd sec so:
523k-50k=
473k = A’s pre indiviso share of her heritiable estate.
thus when she dies intestate. B under s.8(4) has the right to inherit B’s share

Question 12

s. 9 financial provision what happens if there is heritable and movable

Answer 12

if there is heritiable and movable property then the financial provision is takene rateably from FREE HERITAGE and FREE MOVABLES

Question 13

examples of prior right
A dies survived by B and 2 children X and Y . co -owned house with B= 170k . loan on house 40k. contents of house = 40 k. A owned own holiday home 50k. sundry movables worth 200k.

Answer 13

PRIOR RIGHT
1. dwelling house to work out A pro indivisio share s.8(4)
170/2= 85k
40k/2 = std sec on A’s share of house= 20k
85k- 20k= 65k
max you get for dwelling house= 473k so B takes house s.8(4)
2. plenishings A takes B’s share of the contents due to presumption of coownership of married couples family law act s.25
3.S.9 FINANCIAL PROV (UP TO 50k) to be taken rateably from free heritage and free moavbles 50k H: 200kM 1:4= 1/(1+4) of 50k and 4/(1+4) of 50k
after PRIOR RIGHTS 40 k anad 160k movable still remain

LEGAL RIGHTS IS NEXT
only movable estate. which in this case is 160k. relict right =1/3 and legitim fund =1/3 so 160/3= 53.333k
and total legitim fund = 53.3333k SO X and Y take 26k each. (NB without children relict gets 1/2)

free estate 1964 s.2
53.33k movables + 40k heritable. this goes to s+t equally

Question 14

Rateably? s.(9,3)

Answer 14

the method is this:
the ration of 50k to 20k is as 1:4. so heritable contributes 1/(1+4)=5 and moavbles constitute 4/(1+4)= 4/5 
so 
1/5 of 50k to find heritables
4/5 of 50k to find movables

Question 15

s.11 s.s act

Answer 15

representation in legitim
a and b had 3 kids xy+z.
A+Z die years ago.
Z was married to Q they had 2 kids x2 and y2

Y now dies intestate and unmarried.

so under free estate rules XYZ would be there to inheret their siblings estate.

Z= dead BUT z’s CHILDREN CAN TAKE THEIR PLACE as laughing heir and get their prop of the free estate.

Question 16

s.5+6 1964 act

Answer 16

free estate

Question 17

what does the law prefer full/ half blood

Answer 17

full blood can claim over half

Question 18

artificial intestacy

Answer 18

spous benefit or disinherit children or a situation that would strongly favour spouse. deliberately creates situation of intestacy to renounce legacy so division of the estate can be done according to intestacy cannot claim legal rights and will so do artificial interests

Question 19

kerr petioner

Answer 19

wife takes full estate using legal rights. exhausted in her favour.

Question 20

s.9(1) s.scot act 1964

Answer 20

partial intestacy. relict must deduct from third prior right. priovisio does NOT apply if spous legacy is of dwelling house or contents.
s.9(3) states spouse claiming legal rights must deduct from any prior financial

Question 21

s.29(10) family law scot act

Answer 21

discresionary awards towards cohabs

Question 22

savage v purches

Answer 22

discretionary award towards cohabs
some payment of the oension made the court considered the fact that cohab of 3 years +nature of relationship. HELD payment from pension was enough. DID NOT EXCERCISE DESTINATION OVER

Question 23

owen v whingham

Answer 23

subject to some critism.

waited 6 months before appointing an ex. by which point the power for an interest claim by a cohab is time barred.

Question 24

x v A

Answer 24

waited 6 months before appointing an ex. by which point the power for an interest claim by a cohab is time barred. HELD you CANNOT artificially prevent the aplicatiopn by cohab. THUS 6 months for time bar will start at appointment of exec

Question 25

WINDRAM

Answer 25

cohab liveed together for 20yeaars had kids. HELD discretionary exercised of court order for payment of 34k for dwelling house and payment