Succession Of Property

Question 1

What kind of property passes independent of a will

Answer 1

Pensions
Insurance policies
Nominated property
Joint property (not tenants in common)

Question 2

Requirements for a valid will

Answer 2

18+ 
Capacity 
Specific intention 
General intention 
Understand nature and effect of acts 
Moral claims to consider

Question 3

What if a gift no longer exists or has changed

Answer 3

If it no longer exists then it fails

If it has changed then is it substantially the same

Question 4

What if the B disclaims the gift

Answer 4

It falls into the residue and intestate

Question 5

What if there is force, fear, fraud or undue influence when making a will

Answer 5

The will is invalid

Question 6

What happens if you leave property in your will to your spouse who you later divorce

Answer 6

Spouse or CP is treated as if they are dead

Question 7

How to revoke a will

Answer 7

Destruction
New will/alteration
Marriage or CP

Question 8

What if B commits murder or manslaughter

Answer 8

Forfeiture if murder

If manslaughter wait three months after conviction to apply

Question 9

Can you alter a will

Answer 9

This must be before the execution or it will be void

If original wording is still legible then that will stand. If not then the rest of the will is still valid

Question 10

What if a beneficiary of a will dies first

Answer 10

The gift falls into the residue and intestate
If deaths are close then oldest died first
Can go into Bs estate
If it is to go to two or more as joint tenants it won’t lapse until both die unless severance words (eg equal shares)

Question 11

Requirements of S9 Wills Act 1837

Answer 11

Writing
Signed
Two witnesses (not beneficiary but can be executor)
Attestation clause
If beneficiary is witness then will is valid but that part fails and goes to residue

Question 12

What legislation allows a will to be challenged

Answer 12

Inheritance (provision for family and dependants) Act 1975

Question 13

What does the inheritance (provisions for family and dependants) act 1975 allow

Answer 13

Allows some people to apply for benefit if left out of will or unhappy with amount received

Question 14

Does the inheritance (provisions for family and dependants) act 1975 apply to will or intestate

Answer 14

Both

Question 15

Who can rely on the inheritance (provisions for family and dependants) act 1975

Answer 15

Must be alive
Spouse or CP (former if not married)
Child or treated as child
Anyone maintained wholly or partly by D at time of death
Lived together as husband and wife for two years before death

Question 16

How long do you have to bring a claim under the inheritance (provisions for family and dependants) act 1975

Answer 16

6 months from date of issue of grant of representation

Can be before issue or longer than 6 months if court allows

Question 17

What orders can the court make under the inheritance (provisions for family and dependants) act 1975

Answer 17

Periodic or lump sum payment
Transfer specific property
(Including against shared property)
Will impact IHT

Question 18

What must be proved under the inheritance (provisions for family and dependants) act 1975

Answer 18

Doesn’t make reasonable financial provisions
Regardless of whether it is needed for maintained if it is spouse or CP
Otherwise must be for maintenance

Question 19

What can the court consider when making an award under the inheritance (provisions for family and dependants) act 1975

Answer 19

Resources and needs
Ds moral obligations to applicant 
Size and nature of estate 
Disabilities if applicants or beneficiaries 
Anything else eg conduct of applicant

Question 20

Define force or fear enough to make a will invalid

Answer 20

Actual or threatened injury

Question 21

Define fraud which makes will invalid

Answer 21

Mislead by some pretence

Question 22

Define undue influence to make a will invalid

Answer 22

Ts freedoms of choice was overcome by intolerable pressure even though his judgement remained unconvinced

Question 23

Difference in proving undue influence in will and in lifetime gift

Answer 23

Will- must prove undue influence. Will need evidence from friends and family

Lifetime gift- if it requires explanation because it is large compared to other assets and is made to a on one in a position of trust and confidence there is a presumption of undue influence. They can only keep the gift if they can provide the course with satisfactory explanation.

Question 24

Intestacy rules where there is a spouse and Children

Answer 24

Partner inherits all personal property, first 270.000 and half of remainder

Children split remainder equally

Spouse can require home instead and must live 28 days

Question 25

Intestate rules if there are no children

Answer 25

Partner inherits all personal property and whole of estate with interest since death

Question 26

What happens to jointly owned property when one person dies without a will

Answer 26

It passes automatically on survivorship unless it is owned as tenants in common

Question 27

What is a partner under intestate rules

Answer 27

Married or CP not divorced or cohabiting but ok if separated but still married

Question 28

Intestate rules where there is no partner

Answer 28

Children will inherit everything equally between them

Question 29

Do children get assets immediately if they inherit under intestate rules

Answer 29

No it goes into a trust to access when 18 or when married

Question 30

Do grandchildren or great grandchildren inherit under intestate rules

Answer 30

Only if parent or grandparent dies before intestate person dies or alive when intestate person dies but still dies before reaching 18 or marrying. Then they get equal shares of what their parents or grandparents were entitled to

Question 31

What are PRs powers and duties

Answer 31

Collect and administer real personal estate
Grant of representation
Power of maintenance and advancement for minor (income)
Invest and hold income until 18 or married
Power to insure property
Power to invest trust funds
May acquire freehold or leasehold land
Apply capital for benefit of B before B entitled to receive it.

Question 32

What if PR dies

Answer 32

Others continue to act

If only one PR then court can appoint a new one - grant de bonis

Question 33

What is a grant of representation

Answer 33

Authorised PR to transfer assets

Question 34

How to obtain a grant of representation

Answer 34

PR must submit; 
IHT421 to confirm IHT payment or IHT205 for exempt estates 
Copy of will 
Sworn oath 
Evidence (affidavit) 
Fee £155

Question 35

What is a grant of representation not needed for

Answer 35

Charles
Movable personal property
Cash in Ds possession
Property not passing through PR and not forming part of estate eg pension, insurance and joint property

Question 36

When can PR be personally liable

Answer 36

For loss to estate and breach of duty
Failing to protect value entitled assets
Failing to pay people entitled to assets

Question 37

When can a court relief PR of liability

Answer 37

If PR acted honestly and reasonably and ought fairly to be excused

Question 38

What should PR do if beneficiaries cannot be found

Answer 38

Benjamin order- if they have evidence they tried to trace missing B
S27 TA 1925- protected against unknown claim if wait 2 months before administering estate. Would have to sue Bs
Advertise in London Gazzet and local paper
Indemnity from B so B is liable
Insurance

Question 39

Can you act if there is a gift of significant value to you, your family, member of firm or their family

Answer 39

Do not act unless client takes independent advice