Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

SQE2 - Legal Knowledge > Probate > Flashcards

Probate Flashcards

1
Q

For a will to be valid what is required?

A

The testator must have acted with an intention to make the particular will.

A challenger may prove lack of intention by showing the testator made the will as a result of duress (that is, as a consequence of force or a threat of force), due to fraud, or because of undue influence (meaning coercion or pressure overpowered the testator’s free will)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the effect of destruction in a will?

A

A testator can revoke a will by intentionally destroying it.

Destruction of part of the will may result in a partial revocation or a complete revocation if a sufficiently substantial or vital part is destroyed e.g. page of will that includes signature and those of witnesses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

When a will is destroyed at the request of the testator, the testator must be present at the destruction in order for the revocation to take effect

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

If a beneficiary has predeceased the testator, the gift to them will lapse (fail)

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is a citation to accept or refuse a grant?

A

Is used to clear off a person with a prior right to a grant who has not applied for a grant and shows no intention of doing so.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is a caveat?

A

Used to stop the issue of a grant of probate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

A citation to take probate is used when the named executor has already lost their right to renounce probate, having intermeddled in the estate

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

When hearing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the court will consider whether the will or intestacy has failed to make reasonable financial provision for the applicant.

In the case of unmarried partners, the standard applied is the financial provision required for the partner’s maintenance such that they can live decently and comfortably according to their situation

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Executors have the power of appropriation - they can use an alternative asset to satisfy legacy or interest in the estate, provided no specific beneficiary is affected.

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Unless the will provides otherwise, it is not permissible for a PR to make an appropriation in their own favour to satisfy a pecuniary legacy with an asset other than cash or the equivalent of cash, such as government stocks or quoted shares

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Is IHT charged on property held as joint tenants?

A

Yes - the notional half share is liable to IHT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the value of the IHT estate?

A

Value of estate at death

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is the IHT rate?

A

Anything over the nil rate band is taxed at 40%

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is included in the deceaseds estate for IHT purposes?

A

Anything owned in sole name

Notional share of property owned in joint name i.e. 50%

Interest in life interest trust

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What assets pass under own rules of succession regardless of will?

A

Assets owned as beneficial joint tenants - pass automatically (survivorship)

Trust fund/assets

Life assurance policies pass to the beneficiary named in the policy under contract law

Death in service policies

National savings bank, friendly societies or national saving certificates through statutory written nomination e.g premium bonds

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is a grant of representation?

A

A legal document which confirms a person’s right to administer the estate of a deceased person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What are the types of grant of representation?

A
  1. Grant of probate (valid will appointing executor willing to act)
  2. Letter of administration with will annexed (will exists but problem with appointment of executor)
  3. Letter of administration (no will)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is the pre-grant procedure in probate?

A

IHT must be paid to obtain a grant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

How can PRs pay IHT prior to a grant of probate?

A
  1. Request bank releases funds directly to HMRC
  2. Loan from bank or beneficiary
  3. Sell estate assets that can be sold by showing death certificate
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is required for the application for a grant of probate etc?

A
  1. Two copies of will
  2. Death certificate
  3. Tax form indicating no IHT or that IHT has been paid
  4. Court fees
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

When is a caveat lodged?

A

If a beneficiary believes a will is invalid e.g. testator lack of capacity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is the effect of a caveat on probate?

A

Puts administration on hold for up to 6 months

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is the effect of a citation?

A

An interested party can apply to ask for the Probate Registry to issue a citation to accept or refuse a grant to a person with a prior right who has not applies or shows no intention of applying

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is the preferential order for who may apply for letters of administration with will annexed?

A
  1. Trustee of residuary estate
  2. Other residuary beneficiary
  3. PRs of any residuary beneficiary
  4. Any other beneficiary or creditor of estate
  5. PRs of the latter
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the preferential order for who may apply for letter of administration?

A
  1. Spouse
  2. Children
  3. Parents
  4. Siblings
  5. Grandparents

PRs of someone in the above list has equal entitlement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

A person applying for letters of administration must clear off anyone with a higher entitlement to a grant by confirming in their application that such persons have renounced

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

How many personal representatives are required if there is a minor beneficiary?

A

2

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

When is a grant de bonis non made?

A

When the sole surviving PR dies

BUT not required if a PR dies and leaves a PR fo their own (chain of representation)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Can minors take a grant of representation?

A

No if minor is only PR - grant made to minor’s parents until 18

Yes if there are multiple PRs, the grant will be made to the adult with power reserved for minor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What happens if a will doesn’t have an attestation clause?

A

Affidavit of due execution required from witness or person present at time of execution of will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

When must PRs file an inheritence account to HMRC?

A

Within 12 months of death

Interest accrues from 6 months

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is a small estate for IHT purposes?

A

Estate that doesn’t exceed nil rate band (currently £325,000)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What is an exempt estate for IHT purposes?

A

Estate worth less than £3 million and net chargeable estate doesn’t exceed nil rate band (currently £325,000)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What are the PRs duties?

A
  1. Take reasonable steps to preserve deceased’s estate and realise investments
  2. Act in best interests of beneficiaries
  3. Exercise reasonable care and skill
  4. Liable for losses from breach of duty
  5. Not liable for breach of duty of another PR
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What are the PRs powers?

A
  1. Power to sell, mortgage or lease property
  2. Power to invest but it must be suitable for trust and investments should be diversified
  3. Power to appoint trustees for minor beneficiaries
  4. Power to appropriate: use an estate asset to satisfy a legacy or other interest in the estate provided beneficiary consents
  5. Power to insure property of estate
  6. Power to apply income for maintenance, education or benefit of minor
  7. Power to advance funds to any beneficiary with a vested or contingent interest in capital of estate
  8. Power to indemnify themselves (reimburse themselves) for expenses they incur on behalf of estate
  9. Power to delegate duties to agents BUT are liable for breaches by agent if PR failed to use reasonable care in appointing agent

PRs DO NOT have power to continue carrying on deceased’s sole business

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What gifts made in the 7 years before the descendants death are exempt from IHT?

A

Gifts to spouse

Gifts to charity

Gifts of £250 or less

Wedding gifts
£5,000 - parents
£2,500 - grandparents/bride/groom
£1,000 - all others

Annual exemption of £3,000 which can be carried forward to the next year = total £6,000

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

How to calculate IHT?

A

Deduct any reliefs and exemptions and then apply NRB - figure left is taxed at 40%

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

How long must a spouse survive a descendant to take under intestacy?

A

28 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

How many executors are required?

A

1

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

How many executors can be appointed?

A

Up to 4

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

If a deceased left no will, a person interested in serving as administrator applies for letters of administration

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

How is a will revoked?

A
  1. Destruction by burning, tearing or otherwise destroying by testator or someone acting on testator’s instructions in their presence
  2. If a testator marries after executing a will
  3. A new will revokes a previous will to the extent that is is inconsistent with earlier will
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

What is the doctrine of dependent relative revocation?

A

A destroyed will might be given effect if it’s proved its destruction was contingent on future event that didn’t occur e.g. the testator destroyed the old will intending to write a new one but wasn’t able to

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

What is the presumption if a will is found mutilated after a testator’s death?

A

Presumed to be mutilated by testator with intention to revoke unless evidence to the contrary

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

What happens if a testator divorces their spouse after executing their will?

A

Former spouse is treated as deceased

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

What is intestate succession?

A

Statutory method of distributing assets that are not disposed by will either because the deceased died without a valid will or because a valid will failed to distribute all of the deceased’s estate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Who has the highest claim to the estate of a deceased who has died intestate?

A

Spouse IF the deceased left no issue

BUT they must survive deceased by 28 days to take under intestacy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

If a deceased died intestate and left a spouse and issue what is their entitlement to the estate?

A

Spouse takes
1. All tangible moveable property, investment property e.g. stocks and property used for business BUT not money

  1. Statutory legacy (fixed amount) of £322,000
  2. Half of remaining estate

Issue take the remainder

BUT spouse can elect for PR to transfer matrimonial home in satisfaction of their entitlement BUT if it is worth more than entitlement then spouse must pay difference

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

If a deceased died intestate and had no spouse who inherits?

A

Children

BUT if child predeceases their parent but is survived by their own children, then the children taken on trust and split their parent’s share i.e grandchild if child deceased

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

An adopted child is treated as a child of whole blood for the purposes of intestacy

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

What is the order of entitlement for intestacy?

A

Spouse

Children (or grandchildren if child predeceased)

Parents

Siblings of whole blood

Siblings of half blood

Grandparents

Uncles and aunts

Crown

52
Q

If a deceased held property as a beneficial tenant in common or a beneficial sole owner how does the property pass?

A

In accordance with their will or the rules of intestacy

53
Q

Who pays IHT?

A

PRs

54
Q

How is IHT calculated?

A
  1. Calculate net value of the estate (funeral expenses, debts and other liabilities are deducted)
  2. Consider if any gifts have been made in the last 7 years. Reduce nil rate band by amount of PETs and CLTs
  3. If any nil rate band remains deduct from net value of estate
  4. Any exemptions? Gifts to spouse or charities are exempt
  5. Any reliefs? Business or agricultural
  6. Remaining amount taxed at 40% OR 36% if more than 10% of baseline amount is given to charity (baseline amount is the value of the estate after deducting all reliefs, exemptions and NRB excluding gift to charity)
55
Q

What is the transferable NRB?

A

The unused portion of a deceased spouses NRB may be transferred up to an additional 100%

If survived more than one spouse can transfer all unused portions of NRB up to maximum uplift of 100%

56
Q

What are the conditions of the residence NRB?

A
  1. Used as deceased’s private residence
  2. Left to lineal descendants or spouses of such descendants e.g. children, grandchildren etc.
  3. Estates with a net value of £2 million, the RNRB is tapered by £1 for every £2 over the limit
57
Q

What is the RNRB?

A

£175,000

58
Q

Can any unused RNRB be transferred and to who?

A

Yes between spouses

59
Q

If a descendant downsized their home during their lifetime they can claim a dowsizing addition which uplifts the amount of RNRB based on the value of the earlier owned home

A
60
Q

IHT: Gift with reservation of benefit

A

If a donor gives away an asset but continues to benefit, then the gift is treated as remaining in the donor’s estate when they die BUT doesn’t apply if donor pays the market value for use of gifted asset

61
Q

Quick succession relief

A

Given when an estate was increased by a gift made to in the 5 years before death

62
Q

When is IHT due?

A

6 months from end of the month the descendant died

63
Q

Can a matrimonial home pass to the spouse on death when the deceased died intestate?

A

Yes in part or full satisfaction of their entitlement to the estate

If spouse is entitled to less than the value of the property then they must pay the difference - a balancing payment

PRs appropriate property to spouse in satisfaction/part satisfaction of entitlement

64
Q

What happens to assets owned jointly?

A

Pass outside will or rules of intestacy by survivorship e.g. property, joint bank account etc.

65
Q

What is a personal representative?

A

People who administer the estate

Executor: administer estates under wills

Administrator: administer intestate estates

66
Q

Who can be appointed as an executor?

A

Any person BUT a minor cannot administer an estate

67
Q

What is the effect of marriage on a will?

A

The will is revoked

68
Q

Can an executor renounce their right to a grant of probabte?

A

Yes IF they haven’t already accepted office

69
Q

How does an executor accept office?

A

By taking a grant of probate or by intermeddling in the estate by doing something that shows they’ve accepted office e.g. notifying deceased’s bank of death

70
Q

The office of executor is all or nothing an executor cannot accept some and renounce some

A
71
Q

If a person renounces an appointment and is also a trustee of the estate, the renunciation doesn’t affect their trusteeship

A
72
Q

Where must renunciations be filed?

A

At the Probate Registry - usually by someone else seeking a grant of probate

73
Q

Instead of renouncing an executor who doesn’t wish to act can have power reserved which means they won’t be involved for now but if circumstances change they can apply for grant of probate later

A
74
Q

What court handles non-contentious probate matters?

A

Family Division of High Court

75
Q

Which court handles contentious probate matters?

A

Chancery Division of High Court

OR

County court if estate below £350,000

76
Q

Under the non-contentious probate rules a PR may be able to obtain funds up to £5,000 held in National Savings Bank Accounts, National Savings Certificates, Premium Bonds or building societies by producing a death certificate - payments are at the discretion of the institution

A
77
Q

Under the non-contentious probate rules a PR may be able to sell chattel by producing a death certificate e.g. furniture, jewellery, clothing, cars

A
78
Q

Title to all of testator’s property vests in the executor usually by showing the written grant

A
79
Q

When is an affidavit of due execution required?

A

If an application for grant includes a will which doesn’t include an attestation clause

Affidavit of due execution must be included from a witness or other person present when the will was executed to prove due execution

80
Q

Do PRs have the power to continue carrying on deceased’s sole business?

A

No - power must be given be provision in deceased’s will

81
Q

A sole trustee can give a valid receipt for the proceeds of sale of land BUT if there is more than one PR then they must all join for the transfer of land and shares in a business

A
82
Q

If a gift to minor which includes right to income the PRs may apply the income for the maintenance, education or benefit of the minor otherwise the income must be accumulated until minor reaches 18. Once the beneficiary reaches 18 the income added to capital. If the gift still has a contingency the income will be paid to the beneficiary until the contingency is satisfied.

A
83
Q

PRs may advance funds to a beneficairy with a vested or contigent interest in capital of estate.

The advance may be for up to the entire presumptive share of the beneficairy.

Anyone with a prior life interest in the funds must give consent

A
84
Q

If an advance is made of a contingent gift and the contingency fails is the beneficiary required to pay back the advance?

A

No

85
Q

PRs are personally liable to any unpaid beneficiary or creditor even if not known when a distribution was made UNLESS they place a notice in the London Gazette and wait 2 months before administering estate (s27 Trustee act 1925)

A
86
Q

How can PRs protect themselves from unknown claims?

A

Place advert in London Gazette or a newspaper local to the area in which land forming part of the estate is situated requesting any interested person to contact the PRs solicitors within a minimum of 2 months

87
Q

How can PRs protect themselves from a beneficiary or creditor they cannot find?

A
  1. Make payments owed into the court and then distribute the rest of the estate
  2. Distribute everything with an indemnity from the beneficiaries
  3. Purchase insurance against risk of missing claimant appearing
  4. Seek a Benjamin Order: a court order giving PRs leave to distribute the estate based on the assumption set out in the order e.g. the beneficiary treated as deceased
88
Q

If a PR is worried about a possible claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 what should they do?

A

Wait 6 months from DATE OF GRANT to distribute estate because a claim cannot be made after this time.

89
Q

What must PRs do before distributing the estate to beneficiaries?

A

Pay any creditors

PRs must not sell any property specifically gifted in the will to pay debts unless other assets have been exhausted

90
Q

In what order should the estate’s assets be used to pay unsecured creditors?

A
  1. Property undisposed of by will i.e. in a partial intestacy
  2. Residue UNLESS will provides debts should not be paid from the residue, then they are paid from the following in order:
    a. Property that the will specifically provides should be used for the payment of debts
    b. Pecuniary legacies (abate proportionately)
    c. If no pecuniary legacies or they weren’t sufficient to pay the debts from specifically devised (real property) or bequeathed property (personal property) proportionately
91
Q

If a gift provides it is free of mortgage the mortgage must be paid out of the residue

A
92
Q

In what order should debts be paid if an estate is insolvent?

A
  1. Secured debts
  2. Unsecured debts (abate proportionately)
    a. Reasonable funeral and administration expenses
    b. Preferred debts: wages/salaries of deceased’s employees in the fourth months prior to death up to a maximum of £800 per day
    c. Ordinary debts including money owed to HMRC
    d. Interest on preferred and ordinary debts
    e. Deferred debts: loans from deceased’s spouse
93
Q

What happens if a PR pays a category of debt knowing there are higher-ranking debts?

A

The PR is personally liable if the assets aren’t sufficient to pay the higher-ranking debt

94
Q

A beneficiary may disclaim an inheritance orally or in writing BUT it must be in writing for IHT and CGT purposes

A
95
Q

If a specific legatee disclaims their legacy what happens?

A

It falls into the residue

96
Q

If the last or sole beneficiary of the residue disclaims what happens?

A

The residue passes through the rules of intestacy

BUT if someone disclaims a gift under a will it does not prevent them receiving under the rules of intestacy

97
Q

What is the effect of a variation post-death?

A

Allows a beneficiary to change who gets their inheritance

If a variation is in writing and made within 2 years of death and not made for monetary consideration, it will be treated as if the deceased had left the property to the new beneficiary

If not then the gift is treated as transfer of value for IHT and a deemed disposal for CGT by the original beneficiary

98
Q

How do the PRs vest gifts in beneficiaries?

A

Personal property: delivery in return for a receipt

Company shares: stock transfer form with copy of grant and share certificate

Land: assent in writing and beneficiary needs to register interest with HMLR

Beneficiaries are entitled to income from property gifted to them arising after deceased’s death

Costs of transfer are born by beneficiary unless will says otherwise

99
Q

What happens if estate funds or assets are not sufficient to pay legacies in full?

A

They abate (decrease) proportionately

100
Q

What is meant by appropriation?

A

A beneficiary can ask the PRs to use a particular asset to satisfy a pecuniary legacy

101
Q

A minor cannot give a valid receipt for a gift unless the will provides otherwise - what can the PRs do instead?

A
  1. Accept receipt from minor’s parents
  2. Hold property until minor reaches 18
  3. Appoint trustee to receive and hold property until minor reaches 18
102
Q

Can PRs generally charge for acting as such?

A

No but there are exceptions

  1. If the will authorises it
  2. By agreement of beneficiary
103
Q

Before distributing the residue of the estate the PRs must pay any tax owed from the residue

A
104
Q

How is a PR discharged from their role?

A
105
Q

What accounts will PRs usually keep for an estate?

A
  1. Capital account: to deal with assets in the estate
  2. Distribution account: amount each beneficiary is entitled to
  3. Income account: dividends received

The accounts are usually endorsed by PRs to indicate their approval and then sent to residuary beneficiaries to endorse and discharge PRs with an agreement to indemnify them against all claims and demands

106
Q

What is the effect of an assent?

A

Vests the legal title of the asset in the beneficiary

107
Q

What are the formalities for an assent?

A
  • In writing
  • Signed by PRs
  • Name the person in whose favour it is given
108
Q

Can a beneficiary bring a claim against a PR?

A

Yes BUT a PR will not be liable if they acted honestly, reasonably and ought fairly to be excused

109
Q

Does a beneficiary have a legal and equitable interest in the estate assets before the administration of the estate is completed?

A

No they only have a right to have the estate properly administered

110
Q

A beneficiary may use a tracing claim against a recipient to recover property which PRs have wrongly transferred

A
111
Q

Under the Inheritance Act (Provision for Family and Dependants) 1975 on what grounds can an application for family provision claim be made to the court to set aside the terms of a will (or vary an intestacy) of a person who has died domiciled in England and Wales?

A

On the grounds that reasonable financial provision has not made for applicant

Standard of reasonable financial provision:
- For a spouse applicant: what would be reasonable in all the circumstances, whether or not required for their maintenance
- For other applicants: provisions required for their maintenance such that they can live decently and comfortably according to their situation

112
Q

What is the time limit for a claim under the Inheritance Act (Provision for Family and Dependants) 1975?

A

6 months

113
Q

Who can make a claim under the Inheritance Act (Provision for Family and Dependants) 1975?

A
  1. Survivng spouse
  2. Ex-spouse who has not remarried BUT may be barred from making a claim through a clean break divorce
  3. Child of deceased or person treated as a child of the family e.g. step child
  4. Person being wholly or partly maintained by deceased before death
  5. Person living with deceased during whole 2 years before their death as their spouse
114
Q

If the court approves an application under the Inheritance Act (Provision for Family and Dependants) 1975 the estate devolves according to the court order and not by will or rules on intestacy

A
115
Q

How do pension plans and life assurance policies written into trusts pass?

A

Outside of the will in accordance with the terms of the trust

116
Q

TIP: when dealing with the division of an estate FIRST consider which assets fall outside of the will and then consider what assets fall within the will and how they are divided

A
116
Q

If a property is owned as joint tenants when will it pass to the surviving tenant?

A

Immediately on death

116
Q

Property owned by spouses as joint tenants that passes in accordance with the rules of survivorship is not liable for inheritance tax due to the spouse exemption

A
117
Q

Unquoted shares attract business property relief for the purposes of IHT (check notes for full details)

A
118
Q

If residual gifts fails then there is will be a partial intestacy

A
119
Q

An attestation clause raises the presumption of due execution

A
120
Q

What are four ways you can challenge the validity of a will?

A
  1. Statutory formalities for execution are not complied with (if solicitor prepared then assume meets formalities)
  2. Testator didn’t know and approve the contents of the will (presumption that they did unless something to suggest not the case e.g. suspicious circumstances)
  3. Testaor didn’t intend to make will of own free will e.g. coercion or undue influence
  4. Testamentary capacity presumption unless evidence to contrary e.g. Alzheimer’s diagnosis then presumption is flipped and administrator must prove that testator did have capacity - doctors note would be required, query if any earlier wills which may be revived if current will is not valid
121
Q

Is there an upper age limit for a child to apply for reasonable financial provisions under the Family Provision legislation?

A

No

122
Q

Just because an individual falls within the qualifying category to apply for reasonable financial provisions under the family provision legislation doesn’t mean they will be successful and a court will grant their application

Success = demonstrate that reasonable financial provision wasn’t made for them - court follows guidelines in making decision

Courts guidelines: financial resources of applicant? any other beneficiaries? for children - educational needs?

A
123
Q

Possible professional conduct issues

A

If two clients seek advice regarding an application under the family provisions legislation then cannot represent both

124
Q

If client is considering challenging validity of will and making an application under the family provisions legislation what should you advise as a first next step?

A

Lodge caveat at court so client is notified when administrator applies for grant of probate so the client is aware of when 6 month period starts for application under family provisions legislation

125
Q

IHT may be chargeable to an estate in the following scenario: mum, dad and son die in car accident everything is inherited by only living son under intestacy as no wills. Each estate will pass in age order and so mum to dad to sons to son and unfortunately could mean the estate is subject to IHT because of the way the estates pass

A

SQE2 - Legal Knowledge (7 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions