Succession Flashcards
Purpose
Regulates transfer of a persons real and personal property— upon death
2 different set of rules
Dependent on whether - there is a WILL or NOT
(Testate or intestate)
——TESTATE:
If there’s a will— property DIVIDED according to terms WITH potential statutory modification
(EXAMPLE: to ensure children are properly provided for and not left poverty stricken due to will not providing for them- court will modify this )
Can be REMEDIED- by wife and children - invoking rights conferred by PART IX OF succession ACT 1965
Statutory provisions —- may override terms of a will
—— INTESTATE:
Property divided — according to rules intestate succession
Requirements for valid will:
Section 77- capacity
— sound mind and age (18+ or married)
Black hall v blackhall ( McCracken j)
— onus of proving supposed incapacity of testator—- FALLS ON— person who challenges will
O’Donnell v O’Donnell
— paranoid schizo
— med evidence — condition controllable and controlled by medication
—-will—- Kelly j —- rational , clear, sensible, insightful
Presumption of sound mind NOT rebutted
Golden rule - scaly v rhatigan
Section 78— formal requirements
—in writing
—-signed by testator
—-attested or witnessed by 2/ more person
BENEFITTING WITNESS SHALL NOT BENEFIT
Section 111- legal right share
Spouse and no children— 50%
Spouse and children— spouse gets 1/3 (33.33%)
Section 117- “proper provision”
(right of child to bring application to proper provision)
Applicable where—- testator failed in his MORAL DUTY— to make proper provisions for the children
Court may order— just provision to be made for the child
— include adopted or illegitimate
— obligation — not confined to — minors / financially dependent children
FACTORS for application under Section 117
Standard to apply— what a PRUDENT & JUST parent would’ve done
Laid down by Kenny j — in RE GM
I) number of testators children, ages, position in life
II) means of testator
Iii) âge of applicant child
IV) children financial position and life prospects
V) whether testator made financial provision for child- during his life
KEY CASE—— ABC deceased
Testator —- left discretionary trust—- for benefit of children
— some children —- claimed — did NOT discharge his MORAL DUTy under section 117
Kearns j rejected — based on principles
Certain considerations — financing a good education
Had NOT FAILED moral duty
However, regarding son x— problematic —- business failures
Moral duty existed — Im case of son x—was satisfied due to establishment of discretionary trust
Intestacy- 2 forms
Total intestacy —- death without will
Partial— death with will BUT does NOT cover all property
Total intestacy — estate distribution - 2 stage process
Stage 1 - questions
- spouse/ civil partner & or living issue? Y =(class 1 rules)
N?
-parents class 2
- brother and sister/ nieces and nephews —- class 3
— next of kin ( descendant from common ancestor)——-Class 4 rules
State - ultimate successor — class 5 rules
Stage 2 - distribution according to class rules
Class 1
Spouse or civil partner and/ or issue
Spouse and issue- spouse (2/3)
Issue (1/3)
Issue- includes — ALL blood descendants
Method of distribution - between issue- per stirpes
Grandchildren of deceased- only take if their parent dead
Cumulative share of these children— CANNOT exceed share which their parent — would have received if they were alive
Spouse - no issue— gets WHOLE estate
If issue— no spouse—-issue gets WHOLE estate
Section 73 of civil partnership and certain rights and obligations of cohabitants act 2019
—- if deceased survived by civil partner —rather than spouse
—-civil partner entitled—- 2/3 if —- surviving issue
However— section 73—also— child of intestate CAN apply against
Soundness of mind at time of instruction NOT @time of execution of will: Parker v felgate
A) soundness of disposing Ming @time of construction
B) will prepared in accordance with instructions
C) @time of execution- testator understand what he was signing
Banks and goodfellow test
Deceased condition - well managed
No manifestations of schizo
Testator of sound and disposing mind
Section 98- doctrine of lapse- beneficiary predeceases testator
Moorehead v Tiilikainen
Daughter predeceases - mother
Result in case-
Daughter died intestate
Husband received 2/3 of gift made by her mother
3 grandchildren — only received — one-ninth of gift each
Section 90- extrinsic evidence
Only admissible in cases of ambiguity
S90— should be interpreted in context of who succession act
Lynch v Burke
Admission of extrinsic evidence
Did NOT support either of alternative constructions of the will
