Brainscape's Knowledge GenomeTM

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


See full index

Equity and Trusts > Proposition of property upon death > Flashcards

Proposition of property upon death Flashcards

1
Q

wills act 1837 s9?

A

in writing, signed by testator, acknowledge signing before 2 witnesses. witnesses need to sign and acknowledge presence infront of testator

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

when witnesses sign the will do they need to do it infant of each other?

A

No

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

Origins of statue of frauds 1677?

A

the will becomes a public document.

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

functions of s9 formalities?

A

ritual, channelling, evidentiary, protective

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

ritual function

A

carrying out the execution of the will

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

channelling function

A

should be clear where there is a will and where there is not

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

evidentiary function

A

should produce evidence

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

protective function

A

2 witnesses provides extra protection

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

Can you execute a will without following the functions?

A

you can execute it without following the ritual

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

what is a Secret trust?

A

allows testators to leave property secretly, they operate outside of the will

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

Blackwell v blackwell

A

testator left 12k to beneficiaries, instructed them to pay to mistress and illegitimate son

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

do secret trusts need to abide by s9?

A

No

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

what is Fully secret trusts

A

No reference to the secret trust in the will

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

Re gardner no 1 1920

A

may have fully secret trust on an intestacy

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

three requirements for a valid fully secret trust?

A

intention, communication and acceptance.

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

what case outlined the 3 requirements needed for fully secret trust?

A

ottoway v norman 1972

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

what is intention

A

intention to create a trust: certainty of intention, subject matter and objects. kasperbauer v griffith 2000

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

what is Communication

A

secret trusts must be communicated to the secret trustee. wall grave v ebbs 1855

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

re boyes 1884

A

terms of trust in letter after death. it failed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

re keen 1937

A

may be by a sealed envelope given before death

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

communication to one trustee: case?

A

re stead

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

communication- tenants in common

A

if communication before or after death, only A will be bound, B will take absolutely

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

communication- joint tenants. before execution

A

communication before execution- promise binds A and B

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

communication- joint tenants- after execution

A

promise binds only A, B can take absolutely

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

what is Acceptance

A

secret trustees must accept the imposition of a trust. may be accepted either expressly or by acquiescence

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

what is burden of proof?

A

balance of probabilities

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

what did ottoway v norman 1972 say about the burden of proof

A

‘clear evidence’

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

what did re snowden 1979 say about burden of proof

A

ordinary civil standard of proof (balance of probabilities)

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

what is a half secret trust?

A

will refers to the existence of a trust but no mention of its terms- re keen 1937

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

3 requirements of blackwell apply to half secret trust

A

intention, communication and acceptance

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

when does communication need to happen in a half secret trust?

A

before or at the execution of the will

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

failure of a secret trust- half secret trust

A

secret trustee holds property on resulting trust for the estate

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

failure of a secret trust- fully secret trust

A

beneficiary under the will takes absolutely

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

exception to the failure of a secret trust

A

sufficient evidence to show beneficiary under the wills holds on trust but FST fails for other reasons, then a resulting trust for the estate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

s15 wills act 1837

A

beneficiary who attests the will looses any bequest under the will. however the attesting witnesses can tae as a secret beneficiary under a secret trust

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

what is the succession rule?

A

if a beneificiary under the will dies before the testator then the gift lapes

37
Q

what type of trust is a secret trust?

A

constructive trust due to being imposed upon the conscience of the secret trustee

38
Q

what would happen if it was an express secret trust?

A

it would need to comply wth formalities in relation to trusts of land

39
Q

what is a mutual will?

A

couple execute wills in a similar terms leaving everything to the surviver and then identified beneficiaries

40
Q

does it have to be spouses for mutual wills?

A

not always, can be sisters

41
Q

what do they agree at the time of making mutual wills?

A

not to revoke the wills, equity binds the survivor to the promise.

42
Q

case for mutual wills with sisters

A

charles v fraser 2010

43
Q

rationale for mutual wills

A

equity uses constructive trust. survivor holds the property on trust in accordance with the mutual will

44
Q

charles v fraser 2010

A

last will of survivor made changes to terms, went to probate. property went under the terms in the mutual wills

45
Q

does a mutual will need to act in accordance in s9?

A

yes,

46
Q

what happens if the survivor revokes the mutual will e.h. by remarrying or executing a new one

A

equity still imposes an equitable obligation. s18 wills act

47
Q

does the trust imposed on the survivor operate inside or outside of the will

A

outside and limits testamentary freedom. re dale 1994- required to leave property under terms of mutual wills

48
Q

what is the requirements of a mutual will?

A

made pursuant to an agreement to not revoke the mutual wills. a binding event occurs tying them to an agreement.

49
Q

where is the agreement not to revoke?

A

usually found in the will ideally, agreement is contractual in nature.

50
Q

what did re dale 1994 say in terms of consideration?

A

consideration for the contract is the death of the first testator leaving the mutual will unrevoked.

51
Q

pursuant to an agreement- life interest case

A

re hagger 1930- joint will with life interest.

52
Q

pursuant to an agreement- life interest

A

survivor gets life interest in the deceased estate

53
Q

pursuant to an agreement- absolute interest case

A

re green 1951- absolute interest in the property. husband and wife left absolute interest as consideration for leaving it as they agreed.

54
Q

pursuant to an agreement- no property left to eachother

A

re dale 1994- husband and wife left no property to each other. on each death entire estate to be divided equally between son and daughter wife changed will so daughter only £300 and son got everything else.

55
Q

in re dale 1994 what was the outcome of the case

A

equity held her to the mutual will agreement

56
Q

how to prove the existence of an agreement?

A

laid out in the will, look at other extrinsic evidence, mere fact that they are made simultaneously and on similar terms is insufficient

57
Q

re oldham 1925

A

husband and wife left property together absolutely. wife remarried executes a new will giving new husband life interest, remainder to her relatives. greater difference between life interest than absolute (less likely there is an agreement to revoke)

58
Q

what would happen if a solicitor was involved

A

evidence must be clear and satisfactory. re goodchild 1997- solicitors evidence used. stated would never advise a client to make a mutual will

59
Q

do all terms need to be laid out?

A

the agreement is viewed as a contract of law. re walters 2008 state not all terms need to be laid out

60
Q

s2 property (miscellaneous provisions) act 1989

A

generally not covered unless a joint will, one document containing all terms, both signed or separate documents you have exchanged.

61
Q

re hobbled 2006-

A

wife was the survivor, husband executed a codeaseal before he died to revoke the mutual will. discovered afterr her had died. sufficient to revoke

62
Q

can a will be revoked before the binding event?

A

no

63
Q

does notice need to be given for revocation?

A

yeah. dulfour v pereira 1769

64
Q

when is the binding event?

A

when the first testator dies leaving their will unrevoked

65
Q

when does the constructive trust apply?

A

imposed at the time of the first testators death. Re walters

66
Q

what property can be bound by the mutual will?

A

property indicated by the agreement

67
Q

what property was indicated in the agreement in re green

A

specific instructions left to each other by husband and wife

68
Q

property bound by the mutual will in re hanger 1930

A

bound both wife and husbands entire estates, property acquired later on is not covered, only property of both at the time of death of first testator

69
Q

what is donation mortis causa

A

death bed gift, gift by cause of death

70
Q

is a donatio mortis causa conditional on anything?

A

death of the donor and is revocable until they die

71
Q

3 requirements of a donatio mortis causa

A

conditional on death, contemplation of the death and part with the domion

72
Q

what case outlines the 3 requirements

A

re cravens estate no 1 1937

73
Q

what happens when its conditional on death?

A

only effective on death.

74
Q

what terms need to be used for conditional on death

A

not express terms- gardner v parker 1818

75
Q

what happens if the donor recovers?

A

the donatio must be returned

76
Q

what is made in contemplation of death?

A

cannot be vague, death must be expected in the near future.- re cravens no 1 1937

77
Q

is contemplating death ok?

A

contemplating death as a possibility is enough, you do not need to literally be on your death bed.

78
Q

wilkes v allington 1931-

A

suffering from cancer, refused treatment believed he was a doomed man.

79
Q

what happens if they die of another cause

A

they do not need to die of the expected cause. wilkes v arlington 1931

80
Q

is contemplation of death a subjective or objective test?

A

king v dubrey- an objective test, subjective test is too open

81
Q

donor must part with dominion

A

requires intention to part with it and sufficient delivery of it. giving directions for something when you die is not enough

82
Q

possession v dominion

A

have conditional ownership as absolute ownership would be a gift

83
Q

vallee v birchwood- possession

A

more than basic possession. conditional ownership

84
Q

how do you hand over possession?

A

handing over physical possession, remains access to the subject matter/evidence of title

85
Q

what can be the subject matter??

A

land may be transferred by donatio mortis causa

86
Q

land transfer case

A

duffield v elves 1827- not the land itself but the mortgage

87
Q

can you hand over shares by donatio mortis causa

A

some confusion, still mixed authority on shares

88
Q

re weston 1902

A

shares were invalid

Equity and Trusts (4 decks)

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