W&A

Question 1

What are the requirements of capacity to make a will?

Answer 1

1. capacity
2. knowledge and approval
3. lack of duress and undue influence

Question 2

What are the formal requirements of a valid will?

Answer 2

As per Sec 9

1. made in writing and signed by the testator or by some other person in his presence and by his direction
2. the testator intended his signature to give effect to the will
3. signature is made and acknowledged by the testator in the presence of 2 or more witnesses (present at the same time)
4. each witness either:
   a. attests and signs the will
   b. acknowledges his signature in the presence of the testator

Question 3

What is an attestation clause?

Answer 3

An attestation clause records the compliance of sec 9 where the testator and at least 2 witnesses acknowledge the signatures on the will

Question 4

Which courts have jurisdiction to grant representation?

Answer 4

if non contentious: Principal Registry in London or local District Probate Registry

If contentious: Chancery Division of High Court
County Court (if estate below 350K)

Question 5

Which legacy adeems?

Answer 5

A specific legacy

Question 6

What happens if the subject of a legacy is not in an estate?

Answer 6

the beneficiary is entitled to require the executor to purchase it if the estate has sufficient funds

Question 7

When does a gift lapse?

Answer 7

When the beneficiary dies before the testator

Question 8

How long is a caveat valid?

Answer 8

6 months

Question 9

What is a Benjamin order?

Answer 9

An order made by the court for the distribution of assets on death when it is uncertain whether or not a beneficiary is alive

(ONLY applies in case of KNOWN beneficiaries and NOT UNKNOWN beneficiaries)

Question 10

What are the exceptions to the PRs general power to invest in land?

Answer 10

PRs can buy land for occupation by beneficiary or other reason but CANNOT

1. buy land abroad
2. purchase of interest in land with someone else (even if beneficiary)

Question 11

What does seeking a citation to take probate mean?

Answer 11

A citation to take probate is used when an executor has lost their right to renounce by intermeddling in the estate but has not applied for a grant and does not intend to do so.

Once cited by the Probate Registry, the executor must proceed with an application. If they do not, the citor can apply for a court order allowing the executor to be passed over

Question 12

Is a live in partner considered spouse for the purposes of intestacy?

Answer 12

No

Question 13

When does a chain of representation not apply?

Answer 13

When the estate is under administration (chain of rep applies under probate)

Under admin, a grant de bonis non is needed

Question 14

How can a PR fully protect themselves from the claims of unknown beneficiaries and creditors?

Answer 14

placing appropriate advertisements in the London Gazette and waiting at least two months from the date of the advertisements before distributing the estate

Question 15

Against whom can a beneficiary bring personal claim for misappropriation of property?

Answer 15

Against PR and persons who received the property (NOT bona fide purchaser)

Question 16

What is the time limit for bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

Answer 16

6 months of the issue of the grant of representation to PRS

Question 17

When is an alteration of a will valid?

Answer 17

BEFORE the execution of the will

Question 18

What is excepted estate?

Answer 18

1. its value is below the current Inheritance Tax threshold (325k)
2. the estate is worth £650,000 or less and any unused threshold is being transferred from a spouse or civil partner who died first
3. the deceased left everything to a spouse or civil partner living in the UK or to a qualifying charity and the estate is worth less than £3 million (1 million before Jan 2022)

4.the deceased was living permanently outside the UK (a ‘foreign domiciliary’) when they died and the value of their UK assets is under £150,000

Question 19

What is the standard for reasonable financial provision for a spouse/civil partner under the Inheritance (Provision for Family and Dependants) Act 1975?

Answer 19

reasonable in ALL circumstances, whether or not required for maintenance

Question 20

When is a caveat issued?

Answer 20

To prevent an issue of a grant of representation (done by beneficiary if executor lacks mental capacity or invalid will)

(lodged with Probate Registry)

Question 21

What are the different types of citations?

Answer 21

2 types:

1. citation to take probate: when executor has intermingled with state and thus lost right of renouncing but has not applied for grant or intend to do so
2. citation to accept or refuse grant: to clear off a person with prior right to grant who has not applied and shows no intention of applying for a grant

Question 22

Can a PR appropriate alternative assets in their own favour to satisfy a pecuniary legacy?

Answer 22

No (but can for others)

The executors have a general power of appropriation. This means that they can use an alternative asset to satisfy a legacy or interest in the estate, provided no specific beneficiary is affected

Except: asset used to do so is cash or equivalent (eg: gov bonds, quoted shares)

Question 23

What does a surviving spouse receive under intestacy rules?

Answer 23

personal chattels,

£322,000, and

half of the residue.

Question 24

Can an executor sell some of the deceased’s furniture and garden equipment legally without a grant of representation?

Answer 24

Yes, the executor could sell them by showing a death certificate proving the death

(similar for National Savings Bank Accounts, premium bonds, national savings certi, building society)

Question 25

When is IHT due?

Answer 25

6 months from the end of the month in which the deceased died

Question 26

If the PRs advance capital to a beneficiary before they are entitled to it under the will or intestacy, and the beneficiary dies before satisfying the age contingency, does their estate have to repay the amount of the advance?

Answer 26

No, the amount is not recoverable

Question 27

How long should PRs delay distributing the entire estate if they are worried about a possible claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975?

Answer 27

6 months from the date of the grant

Question 28

Having obtained a Certificate of Discharge from further IHT liability from HMRC, the PRs discover a previously unknown asset which affects the IHT payable. Does the Certificate of Discharge protect the PRs from that further liability?

Answer 28

No

(exceptions also include fraud, failure to disclose material facts or changes in IHT liab due to variation)

Question 29

What are the conditions for a valid variation?

Answer 29

A variation allows a beneficiary to change who receives their inheritance.

To be effective for tax purposes, a variation must be made in writing, made within two years of death, and not made for monetary consideration

Question 30

What kind of executors need to be cleared off?

Answer 30

Non appointed executors, or executors who are dead or have renounced

(needs to clear off anyone with a better right; dead or alive)

Question 31

What is dependent relative revocation?

Answer 31

allows a revoked will to be revived when revocation of that will was conditioned upon the validity of the new will

(where the new will is deemed invalid)

Question 32

Can intangible assets be valid subject matter of a trust?

Answer 32

Yes (there are certain and identifiable)

Tangible (eg wine bottles) are not (as they cannot be segregated)

Question 33

Which property passes outside the will or intestacy?

Answer 33

1.Joint prop
2. Life assurance policies
3. Pension Scheme death benefits (there are exceptions)
4. Life interest in trust prop
5. Gift where donor had received benefit (eg: stayed in gifted house)

(these are included in IHT)

Question 34

Can a beneficiary with a contingent interest get capital?

Answer 34

Yes

The interest can be vested or contingent and executor has discretion to advance capital

Question 35

When does a class of beneficiaries close when the testator dies and there is a contingent gift?

Answer 35

Generally, a class closes-to the exclusion of any potential beneficiary not then living-when at least one beneficiary has a vested interest.

When there is a contingent gift, the class closes at the date of the testator’s death if there is any living beneficiary who has met the condition. If there is no beneficiary who meets the condition, the class remains open until the first beneficiary does

Question 36

What is the effect of marriage on a will?

Answer 36

A marriage revokes a pre-existing will unless it is clear from the will that
(1) the testator was expecting to marry a particular person and

(2) the testator intended that the will should not be revoked by the marriage

Question 37

What are the two circumstances in which the presumption that the testor knew the contents of their will when they signed it does not apply?

Answer 37

1. if the testator was blind or illiterate at the time the ill was signed

2.if the will was signed under suspicious circumstances

Question 38

What is a certificate of discharge?

Answer 38

Liability for failed potentially exempt transfers by the deceased can arise if the inheritance tax due is still unpaid after 12 months.

The personal representatives can protect themselves from this liability by making full enquiries to discover details of lifetime gifts and obtaining a certificate of discharge from HMRC.