Succession Flashcards
1
Q
What does s.23 of the Registration of Births, Marriages and Deaths (S) A 1965 state?
A
That all deaths must be registered
2
Q
What does s.50 of the National Assistance Act 1950 require?
A
- Local Authorities have a statutory duty to bury deceased persons after their death if no relevant actions have been taken by family of deceased.
3
Q
City of Edinburgh Council v Melvyn Marcel 2017 CSOH 15
A
S.50 duty override wishes of family member
- Defender wished to build a mausoleum on his property, he held deceased parents on property whilst waiting for pemission
- Council sought decree to bury bodies in accordance with s.50 of the National Assistance Act 1948 duty of burial
- Lord Mulholland granted decree of burial to Court as conditions set out in s.50 were established
4
Q
Explain what is meant by survivorship
A
- In order to inherit, someone must have “survived” the deceased
- Length of time by which they survive them is not significant
5
Q
What is a common calamity?
A
- Where a single tragedy may kill more than one person
- Unclear who/if someone survived the other
6
Q
What rules are laid out by s.31(1)(a),(b) and (2) of the Succession(S) Act 1964?
A
- presumptions as to who died first where people died simultaneously, or - unclear who died first
7
Q
How does s.9 of the Succession (S) Act 2016 simplify the 1964 rules on common calamity?
A
States that, except in limited circumstances (s. 10) the law deems that all those who passed away died simultaneously
8
Q
What rights of inheritance to children have to unmarried parents?
A
s.1 Law Reform (Parent and Child) (S) Act 1986
Have the same rights as children born to married parents
9
Q
Who do adopted children have inheritance rights against?
A
Their adoptive parents NOT their natural parents as per the Adoption and Children (S) Act 2007, s.40
10
Q
Can posthumous children inherit from deceased parents?
A
YES
- Although partial exception to rule that you need to be alive to inherit
11
Q
Do step-children have succession rights in relation to their step-parents?
A
NO
- In the absence of a will which states otherwise, step-children have no succession rights
12
Q
Do cohabitants have right to inheritance?
A
YES
- Family law (S) Act 2006, s.29
13
Q
What is the concept of the “unworthy heir”?
A
Idea that a person cannot inherit from someone they have killed
14
Q
The Succession (S) Act 2016 s.12 provides that a killer cannot benefit from estate of a deceased. What else did the 2016 Act introduce to protect party who obtained property from killer?
A
Protection for party who obtained title to property in good faith whose title would have been affected by killer’s forfeiture.
15
Q
Are married and civil partners treated differently in respect of succession?
A
NO
- married and civil partners treated identically as per succession (s) act 1964 s.2,8 and 9.
16
Q
If a married couple separate (not legally) do succession rights remain?
A
YES
- Seperation not the same as divorce
17
Q
What is meant when someone dies intestate?
A
That the deceased died without writing a will
18
Q
What Act sets out rules for division of estate in an intestate death?
A
The Succession (S) Act 1964
19
Q
What is meant when a person dies testate?
A
The person wrote a will (testament) before their death
20
Q
How is the estate divided in testate succession?
A
By following division laid out in the will
21
Q
Who cannot be disinherited?
A
The Spouse/CP and issue (children, grandchildren etc.
22
Q
What are legal rights?
A
They entitle those eligible for such rights to a portion of the moveable estate.
23
Q
What is the spouse entitled to under legal rights?
A
If there are issue (Children)
- Spouse gets 1/3 of moveable estate
If no issue
- Spouse entitled to 1/2 moveable estate.
24
Q
EXAMPLE
- Manny and his wife have been married and living together for 15 years
- They do not talk and Manny has everything in his will to his nephew and niece
- Manny dies, what rights, if any, does the surviving spouse have?
A
She would be entitled to 1/2 of his moveable estate property as there is not children to the marriage and legal rights still have effect when a will is present
25
What legal rights do children have in succession?
Unbeatable legal right to deceased's moveable estate
- this is known as legitim
- legitim fund is 1/2 if no surviving spouse to all children
- legitim fund 1/3 if there is surviving spouse to all children
26
If there was three children entitled to legal rights, with a surviving spouse how much would they be entitled to each out of a moveable estate of £120,000
Total available to the children would be £40,000
| This would be divided equally so that the 3 children would receive around £13,333 each
27
Do children and spouses have to claim their legal rights?
NO
- Some may reject out of selflessness
- of self interest on part of person with legal rights
28
Why might a person choose not to accept legal rights when shunned from the will?
- Respect of testators intentions
| - Mainly the case where will leaves everything to others with legal rights and they wish not to interfere with transfer
29
Can a person exercise rights from will and legal rights?
NO
| - approbate/reprobate rule - can only exercise either rights from will or legal rights as per s.13 of the 1964 Act
30
What is the difference between approbate and reprobate?
Approbate - Accept will renounce legal rights
| Reprobate - Renounce will, accept legal rights
31
EXAMPLE
- Graham as a house worth £300,000 and moveable property worth £900,000
- Graham has one son, Danny and no spouse
- In his will he leaves the house to Danny and the moveable estate to his friend Wendy
Can Danny make any changes in his own self interest if he wishes and if so what?
- If Danny respected the wishes of the will and declined legal rights he would obtain a value of £300,000
- However, if he renounced the will in favour of his legal rights he would obtain 1/2 the moveable estate (no spouse) totalling £450,000
- He would also receive full value of the house as it would fall in to free estate
- Wendy instead of receiving what was declared in the will of £900,000 would now only receive £450,000
32
What is collation?
- Where a parent has given a child a large sum of money in advance legitim
- When claiming legal rights if there is multiple children, the sum of money given to one child must be added to the legitim fund
33
EXAMPLE
- Jane gives her son Floyd £100,000
- Jane later dies and leaves everything in her will to charity
- Her moveable estate is worth £250,000
- Her three children, including Floyd, claim legal rights
What is each child entitled to from the legitim fund and is the payment received by Floyd solely his?
- Floyds payment must be added to the legitim fund which is 1/2 the moveable estate as no spouse
- Legitim fund therefore would be £225,000
- Divided equally each child would receive £75,000 each
34
How may a child protect a payment that was solely given to them from the legitim fund?
- By opting not to accept legal rights and keeping the advance instead
- Only children claiming legitim have to collate
35
What advances are not collatable?
- If it is made clear that the advance is to be independent of the legitim fund
- If money paid to the child is part of parental duty of aliment to that child
36
Under s.11 of the Succession (S) Act 1964 what may a grandchild do?
- Can claim legitim if their parent (deceased child) has died before the grandparent
- Grandchild has same rights as the child would have had in life
37
If there is multiple legitim claimant, how will division be done?
Per Stirpes - children and grandchildren
| Per Capita - Children only (or only grandchildren)
38
EXAMPLE
- James and Sophie are married.
- They have 4 children Larry, Lisa, Michael and Molly
- Molly dies leaving behind 2 children Claude and Janet
- Sophie subsequently dies
- Mary had moveable estate of £450,000
What will each child receive?
Will the grandchildren receive any money, if so how much?
- The method of division here would be per stripes as it is between children and grandchildren
- There is a surviving spouse and therefore the children will be entitled to 1/3 of the moveable estate
- The legitim fund will be £150,000
- Larry will receive £37,500
- Lisa = £37,500
- Michael = 37,500
- Molly's children would be entitled to her share of the legitim fund equally and would therefore receive £18,750 each
39
What is the 5 stage process of intestate succession?
1) Prior rights
2) Relict’s right (legal right)
3) Cohabitant’s right
4) Legitim (legal right)
5) Free estate
40
What are prior rights and how has entitlement to them?
- Surviving spouse/CP
| - Set of "prior rights" which are satisfied out of specific property and general monetary right
41
Give detail of the s.8 provision of the 1964 Act.
- Spouse inherits dwelling house if value is £473,000 or less
- If more than £473,000 spouse entitled to payment of £473,000
42
How is value of the dwelling house decided?
The deceased's interest
| - must take off any mortgage, debt, and extent of any person's co-ownership
43
What happens if the deceased had multiple houses?
s. 8(2B)(A) 1964 Act
| - Any excess value beyond £473,000 is carried forward to free estate
44
Under s.8(3) of the 1964 Act what else is covered by prior rights?
Plenishings/furniture
| - If value of plenishings does not exceed £29,000 then spouse inherits as property
45
If the value of plenishings exceeds £29,000 what must the spouse do?
- Choose which plenishings they will inherit up to the value of £29,000 (no money payment here)
46
Under s.9 of the Succession (Scotland) Act 1964 what other prior right does a spouse have?
If any money is left from the estate the spouse is entitled to a cash sum.
- £50,000 if there are children of the deceased
- £89,000 if there are no children
47
What happens if excess funds of the estate do not amount to the financial payment laid out out in s.9 of the 1964 Act?
If less than amount due, all that is left will be transferred to the spouse
48
Who's rights directly follow the surviving spouse or CP or if no spouse or CP receive first payment?
Cohabitant's rights
49
Cohabitant's must apply to the Court for succession rights, does this mean they can potentially receive more than a spouse would?
NO
- Family Law (S) Act, s.26
- Rights are discretionary in nature
50
What happened in the case of Savage v Purches 2009
- Surviving cohabitant raised an action under s.29 of the FL(S)A 2006 against executrix dative of late partner's estate, seeking 100%
- Pursuer had received a pension payment from the deceased's employer with a net value of £298,000
HELD - no award to pursuer as his rights under s.29 were nullified as a result of the death benefit
- Discretion not exercised where cohabit had already received substantial benefit despite it not being from the estate
51
What happened in Windram 2009?
- Windram, cohabitee, of deceased sought payment of a capital sum and right, title and interest in the family home under s.29 of the FL(S)A 2006
- Deceased and cohabitee had been together for 20 years and W would be left with no property but for an order
HELD - order should be made to allow W to succeed interest in home and a capital sum of £34,000 should be made to pay up mortgage and satisfy maintenance repairs
52
After prior rights and cohabitants rights, if any moveables are lefts over what will be due?
Legitim
- simple case of 1/2 if not surviving spouse
- 1/3 if surviving spouse
53
What follows legitim?
Anything left over falls in to free estate
54
If there is free estate left at end of inheritance who is entitled to it?
s.2 of the 1964 Act
1. Children
2. Parents/Brothers and sisters (and no grandparents) 1/2 to parent, 1/2 to brothers and sisters
3. Only siblings
4. Only parents
5. Surviving Spouse
6. Aunts and Uncles.
55
What is the governing legislation for testator's capacity?
Age of Legal Capacity (Scotland) Act 1991 s.2(2)
56
EXAMPLE
- Jane leaves everything to Brian in her will
- Brian leaves everything to Jane in his will
- On monday Brian dies
- On tuesday Jane dies
- They two had no children with one an other
Q. Lisa the sister of Jane seeks your advice as to whether she has right to the estate as the surviving sibling
Q. John, Brian's brother, seeks advice as to whether he has right to brothers estate
- In this case Jane would have been deemed to inherit the entirety of Brian's estate, despite dying only one day later as time is no significant in survivorship
- Being that there are no children Lisa would inherit the entirety of both estates whilst John would inherit nothing
57
Given that a person who kills the deceased has their right of succession forfeited under s.12 of the Succession (S) A 2016, is there any way for that person to make a claim at all?
- Court have discretionary power under the Forfeiture Act 1982
- Power only exists if killer convicted of lesser sentence than murder.
58
If a former spouse is left a provision in a will by the deceased will the be entitled to it?
NO
- per s.1 of the succession (s) act 2016
- unless specifically stated
59
If a deceased person has left a survivorship provision to a former spouse will they receive such a bequest?
NO
- As per s.2 of the succession (s) act 2016
- unless specifically stated
60
EXAMPLE
- John dies unmarried with one son Graham
- John has shares in the BoS (£70,000) and £10,000 of other moveables
- He also has a home worth £200,000
- In his will he leaves his shares to Oliver his friend
- The residue is left to Jackie a long time carer
Does Graham have any rights to the property in question, if so how much?
How will Graham's right be paid?
- Graham has legal rights over the moveable estate of his late father
- As there is no spouse this would be 1/2 of £80,000 (£40,000)
- Oliver would receive his £70,000 of shares which would only leave £10,000 moveable property
- In cases like this the the immovable property would have to be sold to satisfy Graham's legal rights of £40,000
- Jackie would then receive a cheque for £170,000 (what was left over).
61
- Larry and Wendy are married with two children, Fred and Maxine
- Maxine has two children Gordon and Diane
- Fred has one child, Grant
- Maxine and Fred both predecease their parents
- Larry later dies leaving heritable property worth £350,000 and moveable assets worth £300,000
Q. Who will be entitled to what in the distribution of the estate
- Prior rights will apply as there is a surviving spouse
- This means Wendy would receive the full value of the property
- She would receive 1/3 of moveable assets (100,000)
- The grandchildren could exercise what legal rights their parents would have had
- Considering none of the children of the deceased are alive then the moveable estate will be divided per capita
- this means 100,000/3
- Grant = 33,333
- Gordon = 33,333
- Diane = 33,333
Note - had Fred survived the division would have been per stirpes
- This would mean Fred would have received £50,000
- Grandkids would have received £25,000 each
62
Well an insane testator be able to have their wishes carried out?
NO
- established in Hope v Hope's Trustees 1889
- lack of capacity when making the will to promote abstinence of the Catholic church
63
What happened in the case of Boyle v Boyle Exrs 1999?
-Child contended a will in which W was name executor and principal beneficiary
- Child contended that at the time of the will being executed the deceased (D) was suffering from senile dementia to an extent rendering her incapax
- Child argued it was signed by D when she was in an advanced state of facility and subject to undue influence from W
HELD
- that at the matrerial time D's mental state was such that she did not have requisite testamentary capacity and was incapax
- Court held that her signature was obtained through control and influence on B at time she was in state of facility
64
What happened in O'Neil v O'neil 2017?
- Son raised an action against two brothers for reduction of a disposition from their mother to them
- He alleged they obtained the disposition from their mother on grounds of facility and circumvention
- S argued the mother had stated she wished he to have the property that was disposed to the defenders
- S argued that the two defenders had enticed their mother to dispose property to them instead of S by taking advantage of her ill health
HELD
- appeal dismissed
- S made no argument of relationship between deceased and defenders which would persuade court she was influenced wrongly
- Despite this being unfavourable to S there was no evidence the disponing of property was unfair
- S could not set up case of facility by generally describing condition of person allegedly circumvented
- no demonstrating evidence mother will overpowered
65
What happened in Marley v Rawlings 2014?
- Husband and wife wrote identical wills leaving entire estate to one another
- In event of other spouse failing to survive other Mr Marley would receive estate
- Upon deaths validity of the wills were challenged by their two sons claiming the wills to be invalid
HELD
- the will could be rectified
- this would now apply in scotland also under the succession (s) act 2016,s,3
66
When is rectification of a will possible in Scotland?
- Where will was prepared by someone other than the testator per the testator's instructions AND the court is satisfied the will fails to express accurately what was intended
67
Where are details on rectification of a will found?
Succession (S) Act 2016, s.3
68
What happened in Macdonald v Cowie 2015?
- Grandson (P) applied to court fir declarator that his Grandmother (D) had gifted title of her house to him and that his aunt (X) was obliged to convey title to him with relevant disposition
HELD
- Promise of gift did not constitute an obligation to perfect an inter vivos gift of house to P
- words used were an intention to do something not of disposal or immediate commitment of disposal
- court held that if D wished to dispose property to P she had ample opportunity to write new will conveying title to P but she failed to do so which suggests there was a strong indication that was not her wish
69
What happened in M Hamilton for Special Warrant as executor of Gibson?
- Appellant sought special warrant to be name executor nominate of deceased sisters estate
- the deceased had stated in her diary that she wished her estate to be left to the appellant
- she had made her wishes clear and even subscribed
- On appeal judge found terminology of diary was enough to constitute a we
- Confirmation granted in favour of the appellant
70
What is a codicil?
Later writings which have an effect on a will
71
What happened in Gaul v Deerey 2000?
- Gaul (P) was nephew to deceased (X) and in original will of 1994 was named executor of the estate and left the residue-
- In 1997, Deerey (D) told X that P had made derogatory marks about her
- X changed her will after being told this by D so that D would be named executor and receive the estate instead of P
- P sought reduction of the codicil from 1997 which revoked the will which benefitted him
- He argued D's story to X was false
- D had struck a friendship with X and subsequently told X about the alleged comments made by P which resulted in the codicil
HELD
- By offering to prove deliberate dishonesty the pursuer had alleged more than necessary for facility and circumvention
- Court accepted that the defender knew he was in a position of trust which he used to gain an advantage
72
What is an informal writings cause?
A clause instructing your executors to give effect to any informal writings found after your death as long as they are subscribed by the testator
73
What is express revocation of a will?
Where one destroys the will itself so that it has not testamentary effect
74
What happened in Clyde v Clyde 1958?
- Testator executed formal will in favour of nephew
- Will deposited in solicitor
- 12 years later the will was taken out by the testator at his request
- 7 years later the testator died
- Upon death the will could not be found
- It was noted that the relationship between the nephew and the testator had not deteriorated
HELD
- Presumption that the will had been destroyed
- Nephew did not raise enough facts to rebut presumption
75
Under what section of what act has changed previous law so that an earlier will is not revived by cancellation on or after 1 November 2016?
s.5 of the succession (s) act 2016
76
What must a person do if on or after November 1st 2016 they wish to cancel current will and wish to revive a previous will?
- need to take action to revive earlier will (e.g. by re-executing the will
- or make a new will with the same terms
77
What did the case of Hay v Duthie 1956 establish?
That when interpreting a will the court should try and place itself in the testators shoes and give an outlook based on their knowledge.
78
What are the three micro rules of interpretation of a will?
1. Will read as a whole
2. Interpretation to avoid intestacy
3. Words given their ordinary meaning.
79
What happened in Robertson JF v Robertson 1968?
- Testator left a will which stated residue of estate was to be placed in a trust and his sister would receive interest thereon only
- The will also made bequests to his niece and nephew upon death of sister and their dependents
HELD
- After the sister passed away the capital and income fell into intestacy
- This was because the word "dependant" was too uncertain in its meaning to give any content in a testamentary deed
80
What happened in Wood v Wood Exrs 1995?
- Testator died leaving holograh document described as trust disposition
- He also left a settlement which appointed his sister as executrix
- Thereafter contained a passage which read "and i give everything i have to her to share out as she knows i would wish it
- The deceased's brother sought reduction of the will and argued that it was void from uncertainty
HELD
- The deed was void due to uncertainty except the provision which made the sister executrix
- The will was silent as to the beneficiaries and the executrix was unaware of the deceased's testamentary intentions
- Intestate rules therefore applied
81
What is a legacy?
A provision that is a part of a will which directs property to be transferred to a nominated person upon the testator's death
82
What is a specific legacy and give an example?
- A legacy that leaves specifically identified property to a nominated person
EXAMPLE
- I leave my xbox game console to my friend Jim
83
What is a general legacy?
| Give an example.
- A testator specifies that a certain quantity of a certain thing is to be given to a nominated person
EXAMPLE
- I leave £20,000 to John Jacobsen
84
What is a universal legacy?
This is where the testator leaves the entirety of his estate to someone in a single legacy
85
What is a residuary legacy?
- This is a legacy to everything that remains (if anything) after all other claims on estate have been met
- Any testament other than a universal legacy should have a residuary legacy
86
What would happen if a testator made a legacy in favour of their child, who then pre deceased them?
- If there was any issue they would take the share of the deceased's legacy and equally share it between them
87
What is an executor?
There person or persons tasked with ingathering the estate and dividing it between people entitled to it
- This may be in accordance with will or intestate succession rules
88
How is the estate divided in accordance with debts and assets?
Estate is to be divided by assets minus debts
89
What is confirmation?
This is where assets are transferred into the ownership of the executor(s) so that they can distribute the estate
90
In the rare circumstance that a person has not traceable family will happen to their estate?
- The estate falls to the crown as ultimate haeres
| - Administered by Queen and Lord Treasurer's Remembrancer)
