Will and Administration of Estates Flashcards
What property does not form part of succession estate in intestacy?
DMC (imminent + conditional/reverts + representing ownership); Discretionary Pension Scheme; Insurance policy written in trust; Statutory Nominations; Joint property/Co-ownership; Other beneficial interests under trusts (life interest); Trust property (trust deed)
If intestate leaves both spouse and issue:
Wife: Personal Chattels (does not include Money/securities; property solely held as investments; property solely/mainly for business purposes) + Statutory legacy of £322,000 free of tax and costs plus interests + half of residue; Children: Half of residue
If no spouse/issue - order of entitlement per AEA:
Parents; Siblings (whole-blood); Siblings (half-blood); Grandparents; Uncles/Aunts (whole-blood); Uncles-aunts (half-blood); Crown (bona vacantia).
How does appropriation of marital home (TIC) work?
Has right to buy deceased’s share through money they would have received from estate. Must make election in writing to PR within 12 months from date of grant. PR not allowed to sell home without spouse’s consent. Where appropriation value is lower, spouse must pay balance. Value of home must be calculated on date of appropriation, not date of death.
What are the legal requirements for a valid will?
Testator must be 18 or over; Testamentary capacity; Knowledge & approval; s.9 Wills Act formality requirements
What is testamentary capacity?
Understand nature of act and effects; appreciate extent of property being disposed - general recollection, not require to recall precisely; Understand and appreciate moral claims; No disorder of the mind
When must testamentary capacity exist?
Generally at time the Will is executed. Limited exception from Parker v Felgate where may fluctuate over time - as long as had capacity when they gave instructions; Will prepared in accordance with those instructions; At time of execution, testator understood they were signing a Will for which they had previously given instructions.
What is the Golden Rule?
When taking instructions form someone client who is elderly/seriously ill, medical practitioner should be asked to make assessment about capacity and contemporaneous record should be made. Not legal obligation but good practice. Reduces chances of disputes later.
When is capacity presumed?
If Will on face of it appears rationale and duly executed. If anyone wishes to challenge validity based on lack of capacity, must provide evidence to raise doubt. If evidence raised, presumption rebutted and burden reverts to propounder of Will.
What are statutory wills?
Court can authorise execution of Will on behalf of adult who lacks capacity. Court must be persuaded that there are grounds to diverge from existing testamentary position and in testator’s best interests to do so - either intestacy rules would apply or change in circumstances means testator would have reviewed their current position.
What is meant by Knowledge & Approval?
General Intention to make document disposing of property; Specific intention to make will they sign, must know and approve of its contents and understand their choices.
When is Knowledge & Approval presumed?
If Will executed in accordance with s.9 formality requirements. No presumption if Testator was blind illiterate; Will was signed by someone on behalf of testator; Suspicious circumstances (prepared by key beneficiary/relative). Attestation clause or Affidavit of K&A may be needed.
What is undue influence and duress and it’s impact on a Will?
If testator coerced into making Will/particular items against their judgement, contrary to their true intention, surrendered to pressures they were unable to withstand. Goes beyond mere persuasion. BoP on person making allegation. Not enough to prove that facts are consistent with hypothesis of undue influence. Must be shown that facts are inconsistent with any other hypothesis (no other hypothesis is plausible).
What are the formality requirements for a valid Will?
In writing; Signed; By testator/some other person in his presence by his direction; Appears that testator intended by signature to give effect to Will; Signed/acknowledged in presence of two or more witnesses; Each witness attests/signs Will or acknowledges his signature in presence of testator
