Module 5 Flashcards
Intestacy is:
When someone dies without leaving a valid Will
Intestacy can also occur:
- When a person leaves a Will but does not dispose of part of the property -ie “partially intestate”
- A valid Will is made but is subsequently revoked and not replaced.
- A valid Will is made in favour of a particular person who then dies and there is no destination over to another person as a substitute. The bequest is impossible.
- A valid Will made in favour of a particular person who kills the Testator unlawfully. The benefit is forfeited (The Forfeiture Act 1982) and there is no “destination over” - ie a providsion to provide a substitute beneficiary of the forfeited bequest. - Intestatcy to the extent of the benefit is forfeited.
S2(2) of the Forfeiture Act allows what to happen?
A court can modify the forfeiture rule if it is satisfied that in all the circumstances of the deceased’s and the beneficiary’s conduct, the effect of the rule should be modified. - eg Jackson, Petitioner 1989 and Gilchrist Petitioner 1989.
Can the intestacy Rules be varied?
Generally no - rigid in their application and no equiatable variation may be made whatever the circumstances. This can be unfair, although the devolution of an intestate estate can be legally varied by the means of a deed of variation under S142 of the INheritance Tax Act 1984. For this to work, everyone has to agree, which is often impossible and the pupil children have to be protected and be shown to be no worse off from the Variation.
The rules of the Succession Act govern all estate with the exception of:
- Heritable property subject to a special or survivorship destination. This is like where in England there is a joint tenancy. So Husband and Wife buy a property and provides that the share of the earlier deceased shall go automatically to the survivor. By s36(2) such estate is NOT “intestate estate”.
- Any property over which the deceased had a power of appointment, which has not been exercised, and the power therefore transfers to another person. Eg a widow was given the liferent of her husbands estate by deceased husband and then gave her the power of appoinment among their children in her Will. If widow dies intestate, the property over which she has a power of appointment is not intestate estate.
Procedure:
- Petition Sherriff Court to appoint an Executor. (this would usually be the next of kin) and (I think) to find”caution” - ie a guarantee usually provided by an insurance company, of the Executor’s dealings with the Estate).
- Executor appointed by the court is known as “Executor Dative” (one named in a Will is known as Executor Nominate).
- Executor is confirmed by the Sherrif Court when the Inventory of Estate is presented to the Sherriff.
OR
- If ann Executor is nominated in the Will, the initial peittion to the Sherriff is not nec, nor is it nec to find “caution”.
6 states of the application of the estate which must be followed in strict order -what are they?
- Payment of debts
- Prior Rights 1 - the dwelling house
- Prior Rights 2 - the furniture and plenishings.
- Prior Rights 3 - the cash right
- Legal Rights
- The Free Estate.
What are Prior Rights?
The rights of the surviving spouse (or registered Civil Partner). Both heritable and moveable.
Prior Rights are in relation to
- Dwelling house
- Furniture and Plenishings
- The financial Right.
Prior Rights - Dwelling House
Right of surviving spouse or civil partner to the deceased dwelling house, or dwelling house (or part of) in which the deceased has a relevant interest (owne or tenanted) and the surviving spous was ordinarily resident (S 8(4) 1964 Act).
The right is up to a value of £473,000 (The Prior Rights of Surviving Spouse and Civil Partner) (Scotland) Order 2011.
What ahppens if the deceased was ordinarily resident in 2 houses - eg town house and country house.
the spouse or civil partner may choose which to take. If the value of the relevant exceeds the amount of the right, the surviving spouse will nominally be alloted that amount in cash, and may “top up” the right from another source to “buy” the interest if its value exceeds the £473k.
What happens if the interest is subject to a mortgage.
Surviving spouse gets the house less the amount of the mortgage. Any proceeds of an assurance policy which pays off debt on death, is not payable to the survivor, but forms part of the estate.
Prior Rights - the right to furniture and plenishings.
The surviving spouse or civil partner is entitled to the furniture and plenishings form the house up to a value of £29k.
If 2 houses - choose which set of furniture but may not pick and chose between the 2.
Heirlooms are excluded - articles which have associations with the deceased’s familly and which ought to pass to that family rather than the surviving spouse.
Prior Rights - The Financial Right
Up to £50.k if there are surving issue of the deceased., £89k if there are not.
Legal Rights - as in Module 4 - but what happens if the children both predecease the person dying intestate leaving 3 grandchildren between the children. How are their shares divided?
Equally between them as they are all of the same degree of relationship. It gets shared per capita across the generation and does not get shared out equally per stirpes.
