Module 7

Question 1

What effect does divorce have upon a Will

Answer 1

It does not automatically revoke a Will.

Question 2

What is an Eik

Answer 2

An additional Confirmation whan an item of estate has been omitted. Fill up a corrective Inventory of estate, pay any extra inheritance tax, and apply to the Sheriff Clerk, Commissary Dept, for an Eik. It has equal effect with a Confirmation.

Question 3

what is Approbate and Reprobate

Answer 3

It means to approve/accept or to reject - the doctrin is that you can’t accept and reject a legal document or accept bits and reject others. So you either are accepting the will or not - ie/eg the provision in the will for you OR rejecting it and taking your legal rights instead.

Question 4

S13 of the Succession(s) Act 1964

Answer 4

gives statutory effect to approbate and reprobate by saying that any testamentary disposition shall have effect as if it contains a clause that the provision being made is in full and final satisfaction of the rights to a share of the testator’s estate by virtue of ius relicti, ius relictae or legitim.

Question 5

what is vesting?

Answer 5

Literally - clothing the beneficiary in the legagcy - the date on which the legacy or bequest of residue becomes the property of the legatee….even if that is not when they actually receive it/payment.

Question 6

when does a bequest usually vest in a legatee & is a presumption of law (unless deed states otherwise)

Answer 6

morte testatoris - ie the moment of the testator’s death.

Question 7

vesting in a young person

Answer 7

The legacy is either to be made:

1 payable on his/her attaining the age of 21 (eg) or
2 to vest in him/her at 21.

If legatee dies before 21 - in 1 - it will be paid when would have reached 21and goe to his/her estate.
If 2 - then the legacy disappears as vesting has not taken place before death.

Question 8

Vesting subject to Defeasance is what

Answer 8

ie where there is vesting subject to it being defeated - eg where there is a destination, eg A will leaves the estate to Henry in liferent and to Henry’s issue fee but at the time of making the Will Henry has no issue and a destination over is made to William. So failing such issue, the fee goes to William. The fee vests in William, but if Henry has issue, William’s right is then defeated.

Question 9

Commissary Procedure to get CONFIRMATON

Answer 9

Confirmation of Executor of a deceased is obtained from the Sherriff Clerk of the local Sheriff court of the deceased’s domicile.- if uncertain domicile or it was not in scotland (Channel Islands and Isle or Mann are foreign countries for htis purpose) - application for Confirmation is made to the Commissary Office in Edinburgh.

See earlier notes about where no executor or unable or unwill to act - Initial Writ application - setting out relationship of Petitioner to deceased and why all applicants with better title have declined./ unable etc.

Executor appointed by Will or Court makes up an Inland Revenue Inventory C1 and IHT200 providing details of the deceased’s estate which should be accurate.

If estate is les than £30k - then it is a small esate and only form C1 and Will or decree is lodged in Court. - If an excepted estae then Form C1 and C5 submitted with the Will or the Court degree to the Sherriff without an IHT200.

If intestate succession - in many cases Executor needs to lodge a Bond of Caution (insurance certificate) with the Sherriff Clerk for his/her actings.

When Sherriff Clerk satisfied papers properly presented - CONFIRMATION is issued.

Question 10

what is domicile

Answer 10

• the country where one’s main home is (not nationality or place of birth)

Question 11

what is Confirmation nominative

Answer 11

Confirmation where there is a will - roughly equivalent to probate

Question 12

what is confirmation dative

Answer 12

Confirmation where there is not a will - roughly equivalent to Letter of Administration.

Question 13

What if there is an incorrect statement of estate or an incorrect valuation

Answer 13

submit a corrective Inventory to the CTO - apply for an EIK where further estate requires to be uplifed.

Question 14

Forfeiture under S 142 of the Inheritance Tax Act 1984

Answer 14

Allows the beneficairy to renounce his or her benefit, normally in favour of that individual’s children. Used to great benefit insofar as generational IHT planning is concerned - but need to have a destination over in the will to provide for if the principal beneficiary renounces. If don’t it will fall either into residue or into intestacy and may defeat the who renunciation.

Question 15

Powers of Attorney - what are the 4 types?

Answer 15

The simple Power of Attorney which will continue to be of use where a client is abroad or where it is convenient to delegate powers for specific or general purposes

a continuing power of attorney dealing with financial matters

a welfare power of attorney dealing with matters of personal welfare

a combined Continuing and Welfare Power of Attorney.

Question 16

If powers of attorney were given pre Adults with INcapacity (Scotland) Act 2000 what do they become under the new act under the transitional arrangements?

Answer 16

Power of A containing powers relating to property or financial affairs becomes a Continuing Attorney.

P of A containd personal welfare powers becomes a Welfare Attorney.

Question 17

Pre S71 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 & now pre 2000 Act Powers of Attorney- what happened on the incapacity of the Granter

Answer 17

the power of attorney lapsed. S71 of the law reform act provided for it to not cease on mental incapacity and the 2000 act does too.

Question 18

The powers of investigation, creation, registration or notification under the Adults with Incapacity (scotland) Act 2000 ( in force from 2nd April 2001) does not apply to what?

Answer 18

pre Act Powers of Attorney.

Question 19

S1 of the Adults with Incapacity (scotland) Act 2000

Answer 19

1. There shall be no intervention in the affairs of an adult unles the person responsible for authorising or efecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be achieved without the intervention.
2. if intervention above is made it is to be the least restrictive option in relation to the freedom of the adult consistent with the purpose of the intervention.
3. to determine if and what intervention - take account of
   - present and past wishes/feelings of the adult so far as they can be ascertained by communication including human/mechanical aid
   - the views of the nearest relative and primary carer of the adult insofar as is reasonable and practicable
   - the views of any guardian, continuing attorney or welfare attorney who has powers relating to the proposed intervention and any person a Sheriff has directed to be consulted in so far as reasonble and practicable to do so
   - the views of any person appearing to the person responsible for authroising or effecting these views have been made known to the person responsible in so far as reasonble and practicable to do so

4.encourage in so far as it is reasonable and practicable to do so, the adult to exercise whatever skills he has concerning his property, financial affiars or personal welfare as the case may be and to develop such new skills.

Question 20

For a Power of Attorney to continue after incapacity of the Granter, it must have been drafted in accordance with

Answer 20

S15 of the Adults with Incapacity (scotland) Act 2000 - key requirements in s15(3)

Question 21

Requirements for a Continuing power of attorney to be valid

Answer 21

1. in writing
2. subscribed by the granter
3. incorporates a statement which clearly expresses the granter’s intention that the power be a continuing power
4. incorporates a Certificate in the prescribed form by a sol or other prescribed class that:
   - interviewed granter immediately before G subscribed the document
   - satisfied that the granter understands its nature and extent of the continuing power of attorney granted (if consulted other people to be satisfied, must name them in the certificate)
   - no reason to believe that the granter is acting under undue influence or that any other factor vitiates the granting of the power.

Question 22

Welfare Power of Attorney. What section of act is relevant for the drafting of this and what conditions does it need to satisfy to be valid.

Answer 22

S16 Adults with Incapacity (scotland) Act 2000.key requirements in s16(3)

Conditions are very similar to those for a Continuing Power of Attorney.

The Power is not exercisable unless the Granter is incapable or the Welfare Attorney reasonable believes this to be the case.

Question 23

Welfare Power of Attorney-What does it enable the Attorney to do.

Answer 23

To deal with the Granter’s personal welfare, including medical treatment, deciding on care and accommodation and cultural and social activities.

Question 24

Can you have more than one power of attorney

Answer 24

Yes but if do so it must be made clear in the power of attorney whether or not the powers can be exercised by them together or alone or by the survivor.

Question 25

Power of Attorney - interpretation

Answer 25

The powers will not be implied - unless a PofA contains a specific power to carry out a specific act then the attorney does not have that power.

Question 26

Registration of P of A

Answer 26

P of A under the new rules must be registered with the Public Guardian before it can be exercised. Also some may include provisions that they only come into effect on the incapacity of hte Granter.

Question 27

P of A resigning from Office

Answer 27

s23 of the 2000 Act provisions must be followed - givie notice to the Gratner, public guardian, any guardian or primary carer and the local authority if htey are supervising a welfare attorney.

Resignationd does not take effect until 28 days after receipt of the Notice by the Public guardian.

Question 28

A P of A in favour of a Spouse - what happens on separation, divorce or nullity of marriage (unless the POwer itself provides otherwise)?

Answer 28

It terminates

Question 29

Exercising Powers of Attorney.

Answer 29

76 pages of a Code of Practice to follow! - But upon becoming awarwe of the Granter’s incapacity should have a meeting with all relevant parties to explain the scope of hte powers to discuss how the Attorney will go about functions, undertake a review of the adults property and ultimately report on that review to those attendign with further discussion on what action is needed etc - record on file and have regular 6 monthly review meetings or more & provision for regular monitoring.

Question 30

Revocation of Power of Attorney

Answer 30

Pre 2007 was to be notified to the Public Guardian (s22) of hte 2000 Act But

now S22 amended by The Adult Support and Protection (Scotland ) Act which requires

• registered powers of attorney under s19 may be revoked by giving revocation notice ot the public guardian
• the revocation notice shallb e valid only if expressed in written document and subscribed by the granter and incorporates the certificate in prescribed form
• the revocation will take effect only if the revocation notice is registered under the section
• in receiving the revocation notice, the public guardian will notify the continuing and welfare attorney.