legal rights Flashcards
Paterson pt
domestic abuse extreme - sought award . not sure the court would follow this
cross ptr
son killed father. court wanted to dispencse with s. 15 son could inherit 99% of fathers estate = modificaition
mortons v aged Christian friend society
it is a general rule that a personal obl transmits against the personal rep (exec). of the obliger. exec cannot be liable beyond estate
how are the legal rights calculated
on movable estate minus the debts attaches to the assets
estates liabilities
must be paid before any payment to ben crucial estates liabilities are paid using assets from the estate in other words the estate is not liable to pay from the same packet
relicts rights
protection against disinhertance have indeafeasabel common law rights. jus rulictae = widow jus relciti= widower if issue = 1/3 movables if no then 1/2
legitim
also called bairns tpart. legtim funtd relict 1/3 movable if no relict then 1/2
A dies leaving everything to her brother. her estate is a house worth 200 k
contents 100k
estranged husband claims legal rights
contents= movable
so movable/2 = relict rights
thus husband gets 50k
brother gets rest
camerons trs v maclean
entitlement to money as
widow can claim legal rights
widow can claim shares
BUT share price entitlement was fixed.
macgregrors ex
the relict and the bairns are among creditors and creditors among heirs. debts are claimed on the assets before the relict and issue are able to make a claim on their legal rights. holder have strong priorty over net estate testate succession not succession no so accurate as intestate
deads part what is available to bequest
1/3 they can bequest to whoever they want
who would renounce rights to inherit
ANYONE
s. 131 civil partnership 2004 act
s. 101 2004 act
s.131/101- relict = widow/widower =surving spouse AND civil partner
civil partners put on the same stat footing as spouses
why would they renounce legal rights
family solidarity to make sure wishes of deceased were fulfilled or to claim a legacy
renounce rights before death of the deceased treat it as if the person is never alive
example if a and b have child x. if child x wants to renounce legal rights pre death it will be treated as if he was never alive CHECK THIS
what is approbate and reprobate
cannot claim the legal rights and legacy at the same time
s.13 1964 act
stewart v bruces trs
approbate and reprobate. OPPORTUNITY TO CONSIDER ELECTION.
trust here given time what to renounce
Naismith v boyes
if partial intestacy then can claim legal rights OVER THE INTESTATE PART OF THE ESTATE. s.13 1964 act
representation
the doctrine that allows that allows the issue (a descendent ) of a predeceased person to rep them when it comes to division of the estate
s. 5 and s.11 1964
rep IS possible for intestate succession rights and legitim
rep IS NOT possible for LEGACIES/ PRIOR RIGHTS/RELICT RIGHTS/COHAB CLAIM
s.6 2016
for legacies something similar to rep SOMETIMES applies
define per stirpes
division in rep will be p[er stirpes if the claimants are not of all the same relation= children and grand children
example
A dies leaving money to children XYZ. X has 2 children P and Q. X has pre deceased A. P+Q represent X to take X’s share in the legacy.
define per capiat
division in rep will all be the same relation= all grand children claiming
EX
A leaves will to XYZ. XYZ all have children. all pre deceased A. there children will stand in BUT it will be all grandchildren.
collation
advance money paid = collatable advance treated as part of the legitim
coats trs v coats
no one cliaments no collation required one person claiming unfair to collate
collation example 1 A dies. RELICT= R and 3 sons TDH. heritable= 300k movable 180k T has had a collatable advance of 12k will= hetiable = goes to R rest go to charity sons claim legitim calculate legitm
- 180k/3 = movables available to the sons as there is a relict
- 60k+12k= 72k this is the total legitm for the boys
- 72/3 to find out what each boy receives.
=24k
D,H=24K
T=24K-12K
=12K as he has had his collatable advance
collation example 2 A dies. RELICT= R and 3 sons TDH. heritable= 300k movable 180k T has had a collatable advance of 60k will= hetiable = goes to R rest go to charity sons claim legitim calculate legim
T would refuse legitim.
d+h would only get 20k each
180/3= 60k = total boys could claim from
60k/3=20k what d+h would get
circumventing legal rights
get rid of assets pre death
reduce trust so not part of the estat
artificial intestate
what is the comparitve law in england
1975 s.1 inheritance law places a premimum on those who use lawyers, prepare a case and make it well before the court.encourages family disputes
the French and german are similar to the Scottish based of civil systems
