Unit 1 - Validity and Intestacy Rules

Question 1

What property passes outside of the will and intestacy rules?

Answer 1

• Joint property - this passes to the surviving joint tenant
• Insurance policies - a person may write it in trust for the benefit of a specified individual
• Pension benefits - paid to family members or dependants from the trustees’ of the pension fund

Trust property - accords with the terms of the trust and not the will

Question 2

Why is a revocation clause required?

Answer 2

To make clear that any previous wills are of no effect.

Question 3

What is the role of an executor?

Answer 3

They collect assets, pay any debts and inheritance tax and then distribute the remaining assets to those entitled once probate has been granted by HM Court Tribunal Service Probate.

Question 4

What are the requirements for a will?

Answer 4

• Intention
• Capacity
• All formalities have been observed

Question 5

What requirements are needed to establish capacity?

Answer 5

Must understand the nature of their act and its broad effects

Must understand the extent of their property

Must recall who has claims on them and nature of those claims so that they can include/exclude beneficiaries from the will

They should not be suffering from a disorder of the mind

Question 6

What is the general rule and presumption relating to capacity?

Answer 6

Presumption of capacity = A will is considered valid if the will is rational on the face of it.

Rebuttal = The burden shifts to a challenger to prove lack of capacity e.g. medical evidence.

Question 7

What are the requirements to establish intention?

Answer 7

A testator must have general intention (intending to make a will) and specific intention (knowledge of the particular will being executed and its contents)

Question 8

What is the general rule and presumption in relation to intention?

Answer 8

Presumption = Where the testator had knowledge and approval and they executed the will.

Rebuttal = The testator is blind/illiterate or not signing personally, suspicious circumstances, if there is evidence to the contrary.

Question 9

What must a person challenging a will prove to prevent some or all of the will being admitted to probate?

Answer 9

• Force or fear
• Fraud
• Undue influence / coercion
• Mistake

Question 10

What are the requirements to prove undue influence?

Answer 10

The person challenging the will needs to prove the testator’s freedom of choice was overcome by intolerable pressure.

Question 11

What formalities are required to create a will?

Answer 11

• It must be in writing (wet ink)
• It must be signed - thumbprints and crosses have been sufficient, as long as the testator intends to represent their name
• The testator must have intended to give effect by signature
• The signature must be witnessed by two witnesses who are capable of understanding the significance of being a witness

Question 12

Can a spouse or civil partner of a beneficiary be a witness?

Answer 12

The will will still be valid but the gift to the beneficiary or their spouse fails.

Question 13

When do the rules of intestacy apply?

Answer 13

They apply to determine who is entitled to an individual’s property when they die without having disposed of it by will.

Including: invalid wills and not all estate property has been disposed of.

Question 14

What is the statutory trust when referring to intestacy?

Answer 14

A trust is imposed over all the property and held by the person dealing with the estate (the personal representative)

Question 15

What is the definition of an ‘issue’?

Answer 15

All direct descendants of the deceased including adopted children.

Question 16

How is an intestate estate distributed when there is a surviving spouse/civil partner AND issue?

Answer 16

• The spouse or civil partner received the personal chattels
• The spouse or civil partner receives a statutory legacy free of tax and costs plus interest from death until payment. This is capped at £322,000.
• The rest of the residuary estate is divided in half. The spouse receives half absolutely and the other half is held for the issue on the statutory trust.
• The spouse/civil partner must survive 28 days, otherwise it is distributed as if they did not survive the intestate.

Question 17

What happens to the family home if someone dies intestate and there is a surviving spouse/civil partner?

Answer 17

If the intestate dies as a sole owner or a tenant in common, the property will form part of the residuary estate. However, provided they are living there, the spouse/civil partner can require the personal representative to appropriate the family home in full in satisfaction of their interest in the estate.

Question 18

How is the remaining residuary estate distributed to the issue when dealing with a surviving spouse?

Answer 18

They are entitled to half the residuary estate which is held by the statutory trust. It is distributed as follows:

• Direct living children (18+)
• Direct living children (contingent on reaching the age of 18 or marrying/civil partnership)
• Living grandchildren (contingent on reaching the age of 18 or marrying/civil partnership)

If the issue die without attaining a vested interest, they will be treated as having predeceased the intestate and they can be replaced by their own issue.

Question 19

How is an intestate estate distributed where there is a surviving spouse but no issue?

Answer 19

The estate passes to the surviving spouse as a whole. They must survive 28 days to claim this,

Question 20

What is the order of distribution of an intestate estate when there is no surviving spouse?

Answer 20

1. the issue on the statutory trust
2. parents
3. brothers and sisters of whole blood
4. brothers and sisters of half blood
5. grandparents
6. aunts and uncles of whole blood
7. aunts and uncles of half blood
8. the Crown, Duchy of Lancaster or Duke of Cornwall

Any entitlement is split equally if there are multiple people in the same category.

Question 21

What is ‘bona vacantia’?

Answer 21

Vacant or ownerless goods which can be passed to the Crown, the Duchy of Lancaster and the Duke of Cornwall.

Question 22

Can any claims be made to the estate once it has been declared ‘bona vacantia’?

Answer 22

Qualifying individuals can make a claim for a provision from the estate. HM Treasury’s solicitor requires proceedings be brought to ensure all potential claimants are involved.

Question 23

What happens to the estate that passes ‘bona vacantia’ and no further claims have been made?

Answer 23

They pass to HM Treasury for tax purposes, and into benevolent funds for charitable purposes for the Duchies of Lancaster and Cornwall.

Question 24

How are adopted children treated in terms of intestacy?

Answer 24

They are treated as the children of their adopted parents and not of their natural parents.

Question 25

How are illegitimate children treated in terms of intestacy?

Answer 25

It is presumed that the individual has not been survived by their father unless the contrary is shown. This does not apply if the father is shown on the birth certificate.

Question 26

In order to benefit from a parent’s estate under the intestacy rules an adult child must survive their deceased parent by 28 days. Is this true?

Answer 26

No.

Under the intestacy rules the 28-day survival requirement only applies to a spouse, not to the other categories of potential beneficiaries.

Question 27

What is the difference between a vested interest and a contingent interest?

Answer 27

A beneficiary will have a contingent interest and not a vested interest if that beneficiary has to meet a condition.

A vested interest of a trust does not have to meet any conditions for their interest to take effect.