Wills Flashcards
1
Q
What is needed for a valid will?
A
The person making the will must have:
- capacity at the time will was made
- intended to make a will and
- executed the will with certain formalities
If any missing, can’t be offered into probate
2
Q
What is the test for capacity when making a will?
A
Must be at least 18.
Mental capacity presumed unless someone challenging the validity of the will proves that Testator lacked capacity.
Test - by statute, a person lacks capacity if:
- at the material time
- the person is unable to make a decision for themselves in relation to the matter in question
- because of an impairment or disturbance in the functioning of the mind or brain.
3
Q
To have capacity, what must the testator understand?
A
At time of execution, must understand:
- nature of the act (making a will and effects)
- extent of property
- claims to which ought to give effect (no need to give effect but understand who these people would be)
4
Q
When determining capacity, when is the relevent time?
A
When the will is signed.
Exception where testator doesn’t have mental capacity at date of execution but did have capacity when giving instructions. If will prepared in accordance with instructions and at time of execution, testator understood that signing will that instructions previously been given for, deemed to act with capacity.
Eg Alzheimer’s.
5
Q
How can challenges to capacity be prevented where suffers from medical condition that may affect capacity?
A
Best pratice:
- arrange for doctor to be present at signing
- doctor sign as witness or provide note saying that at time executed was capacity of understanding nature and effect.
- make file note explaining circumstance at execution.
6
Q
When is intention to make a will present?
A
Where testator had:
- general intention to make a will and
- specific intention to make particular will (know and approve contents of the will when executed)
7
Q
Is there a presumption of knowledge and approval?
A
Yes, presumed that if testator had required mental capacity, acted with requisite knowledge and approval.
Doesn’t apply in 2 situations:
1) Testator is blind or illiterate or will signed on testator’s behalf or
2) there are suspicious circumstances such as where drafter substantially benefits from will. Gift will usually fail unless evidence of testator’s knowledge and approval put forward by recipient of gift.
8
Q
Can the presumption of knowledge and approval be rebutted?
A
Yes, Can be challenged but challenger has the burden of proving lack of proper intention, usually by showing fear, fraud, undue influence or mistake
9
Q
What will the court look at when deciding if a will is invalid for lack of knowledge or approval?
A
The court will consider factors such as:
- whether the will was easy to understand
- surrounding facts such as whether T asked 2 people to witness, indicating knew it was a will
- whether any suspicious circumstances surrounding will
10
Q
How should a solicitor handle when a client wants to leave them a gift in their will?
A
If regulated by SRA have to act with honestly and integrity.
Should refuse significant gifts unless client seeks independent legal advice.
May result in conflict.
11
Q
What is duress and what effect does it have on a will?
A
Duress is where the testator has been injured or threatened with injury.
Will is not regarded as an act of the testator and will not be admitted to probate.
Will will only be admitted to probate if the court pronounces it is valid and issued a grant in solemn form.
12
Q
How does an executor obtain a grant in solemn form?
A
Executor puts forward will in a claim where ask court to determine the validity of the will.
It’s legal action to authenticate a will.
All interested parties will be a party to the claim. After hearing all evidence court will pronounce as to validity. If pronounced valid, will order issue of grant of probate.
13
Q
What undue influence?
A
Something that overpowers the volition of the testator. More than persuasion. Need to prove coercion or pressure that overpowered freedom of action of testator.
Not presumed, court will interfere if appears testator surrendered to intolerable pressure. More inclined to find if testator mentally or physically weak.
14
Q
What are the formalities required for a valid will?
A
Will must be:
- in writing
- signed by testator (or another person in testators presence and by their direction)
- signed or acknowledged by the testator in the presence of 2 or more witnesses present at the same time
- signed or acknowledged by each witness in the presence of the testator
15
Q
What is a privileged will?
A
A privileged will is a type of will that can be made without the usual formalities required for a standard will. It’s a quick and flexible way for certain individuals to make their wishes legally binding.
Privileged wills are typically made by members of the armed forces or merchant seamen who are engaged in active military service or similar conditions. They can be oral or written, and do not require witnesses or signatures.
16
Q
Must both witnesses be present at same time with testator when sign will?
A
No
17
Q
What is an attestation clause?
A
Clause that confirms requirements met.
Eg ‘signed by the testator in our presence and then by us in his’
Special attestation clause needed if testator is blind or illiterate. Evidences read to them, they understood and approved contents then signed or signed by another person in his presence.
If not included, person who is offering will to probate must prove that formalities were followed. Usually by witness testimony/statement.
18
Q
What are signature requirements?
A
- can be actual signature
- initials
- stamped signature
- mark
- pencil
- unfinished signature
- words eg ‘your loving mother’
19
Q
Where should the signature be placed on a will?
A
Usually at end but can appear anywhere.
20
Q
What are requirements if someone signing on testators behalf??
A
Must be in presence of and direction of testator.
May be a witness but doesn’t need to be.
Must indicate that signed at testators request. Should include in attestation clause
21
Q
What are witness requirements for a will?
A
- Witness must be capable of understanding significance of being witness to signature. No need to know contents or even that it is a will.
- Blind person can’t be a witness
- Mentally unsound person can’t be a witness but subsequent loss of capacity doesn’t make invalid if competent at time of witnessing.
- beneficiary or their spouse shouldn’t be witness as may cause gift to them to fail
22
Q
Can documents be referred to in a will?
A
Yes but document must exist at the date of the will and be referred to in the will. Cannot be future intention to make a list etc.
23
Q
Can a will be amended before execution?
A
Yes
24
Q
Can a will be amended after execution?
A
Yes but more formalities to be effective
25
What is required for a valid amendment to be made after execution?
Needs to be executed in same formalities as will.
- T needs to sign with 2 witnesses
- must have capacity and intention
26
What happens if alteration made without proper formalities?
If unattested, presumed to have occurred before execution and original gift applies unless filling in a blank.
Solicitor will see if can make out originally words by natural means eg magnifying glass, if apparent then admitted to probate rather than amendment. If not and original words obliterated, admitted with blank space where words obliterated. Usually results in original gift being revoked.
27
What is a codicil?
Brief document that adds to, amends or partially revokes an existing will.
28
What are the requirements of a valid codicil?
- must make reference to the will
- must meet requirements of a valid will, eg formalities, capacity
- clause should be included confirming the unamended part of the will
- codicil may remedy a gift which was void due to B witnessing will.
29
When will a will be revoked?
May be:
Automatic by law
- upon married or civil partnership unless appears that when will made, testators was expecting to marry a particular person and that they indented that all or part of their will should not be revoked by marriage. Express statement should be included.
- divorce, dissolution or nullity does not revoke but law treats it as former partner has died. Appointment as executor not effective and gift lapses.
Deliberate act of testator
- executing later will or codicil, revokes partially or wholly. Later will or codicil impliedly revokes only to the extend that it is inconsistent with or repeats the terms of earlier document. Should contain revocation clause.
- destruction, burning, tearing or otherwise destroyed by testator or by some person in his presence and by his direction with intention of revoking. Required act and intention.
30
What counts as act of destruction?
- not writing cancelled or revoked.
- if part destroyed, may only result in revocation of that part
- if vital part destroyed eg signature slice, may be effective.
- if done by someone else, must be at direction of testator and in their presence.
31
What counts as intention to revoke?
Testator must have intention to revoke at time of wills destruction. Mental capacity requirement same as when making will.
If will found mutilated at date of death, presumed that done by testator with intention of revoking.
If will last known to be in testator’s possession but can’t be found at date of death, presumed that it has been destroyed by testator with intention of revoking it.
Rebuttable however.
32
What is the doctrine of dependent relative revocation?
Court may apply doctrine of dependent relative revocation to save a will.
Occurs where intention to revoke conditional upon a future event eg later execution of new will. If that event didn’t take place, original will may be valid even if destroyed if it can be reconstructed from copy or draft.
33
What is a mutual will?
Wills made by 2 or more people usually with same clauses further to agreement between them to make the will and that they are irrevocable without consent of other. Contract between them.
Agreement creates constructive trust in favour of beneficiaries.
Means that if 1 of them dies and other changes will, beneficiary harmed by the change may apply to court for an order for recipient under changed will to transfer it to the person that would have been beneficiary under original will.
34
From what date does the will speak?
Gift determined at the date of death, unless contrary indication in will. Eg ‘now’ or ‘at present’
Beneficiaries determined at date of wills execution (subject to class closing rules)
35
What are the different types of gifts?
Specific legacy - specific part of estate identified in will.
General legacy - doesn’t identity particular item
Pecuniary legacy - gift of cash. May be general (doesn’t specify course) or demonstrate (identifies source)
Residual legacy - everything left not otherwise disposed by gifts or taken up by payment of liabilities.
36
What is ademption?
Doctrine stating that a specific gift will adeem if no longer part of estate, subject to binding contract for sale or no longer meets description in will.
Change in substance will cause to adeem but change in name or form doesn’t.
37
What happens if specific gift isn’t in estate at date of death?
Gift adeems.
Issue where specific gift made described in will but at time of death different item that meets same description.
In the case of a specific gift such as ‘my car’ testator taken as showing contrary indication. Court may presume that it will be the car the testator had at the time the will was executed, not at date of death. So if that car gone, adeems.
Language in will can avoid this.
May depend according to circumstances, if property can vary in value eg my jewellery, taken as at death.
38
How does a gift lapse?
Where beneficiary predeceases the testator.
Common practice to include substitutions gift in will, if there is one, gift will go to substitute beneficiary and won’t lapse.
If lapses, falls into residue. If residuary gift lapses, passed under intestacy rules.
People in will taken as at date of execution so gift to eldest daughter of Mandie is taken as at date will made, so if Sophie dies before testator, gift doesn’t go to Layla.
39
Will a gift to joint tenants lapse if one of them predeceases testator?
No, only if they all die before testator. If gift made to A &B jointly and A dies before T, whole gift passes to B.
Doesn’t apply if words of severance/shares. If that happens, A’s share lapses and B takes only their share.
40
What’s the law of commorientes?
Where it is impossible to determine who died first out of testator and beneficiary, the law presumes that younger person outlives older.
41
What happens when a gift is made to deceased’s issue?
If gift made to testators child or other issue (lineal descendent, eg grandchildren, great grandchildren) and that person dies before testator who leaves living issue.
Living issue receives gift - takes per stirpes.
Includes unborn children. If more than 1, equal shares.
Only applies to testators issue.
May be negated by wording, eg such of my children that survive me
42
What is a class gift?
Gift of property to decided amongst beneficiaries who fulfil general description eg children of X. Issue with how to divide between Bs or how much to set aside for gifts not certain until X dies.
43
What are class closing rules?
Developed for vested and contingent interests.
When a class closes, excludes any B not then living.
Class closes when at least 1 B has vested interest to exclusion of those not then living (unborn included)
44
When do the rules of intestacy apply?
- The deceased died having made no will or no valid will or
- The deceased will doesn’t dispose of all property (partial intestacy) as gift of all or part of residue fails.
45
Where are the rules for intestacy contained?
S46 Administration of Estates Act 1925
46
What happens if there is a surviving spouse but no issue?
Spouse entitled to entire estate. Must survive deceased by 28 days.
47
What happens if there is surviving spouse and issue?
Spouse takes:
- personal chattels absolutely (not cash and business/investment assets)
- £322,000
- 1/2 of residue absolutely
Issue takes other 1/2 of residue once turn 18.
48
Where there is surviving spouse and issue, what happens to the matrimonial home?
Spouse can require PRs to transfer to them in partial or total satisfaction of their interest. If worth more than entitlement, can still require it to be transferred by pay over difference (equality money) to the estate.
49
What is the order of intestacy where there is no surviving spouse?
- issue on statutory trusts
- parents
- brothers and sister of full blood on statutory trusts
- brothers and sisters of half blood on statutory trusts
- grandparents
- uncle and aunts of whole blood on statutory trusts
- uncle and aunts of half blood on statutory trusts
- crown
As soon as person in one category identified, others are ignored.
Members of class take equally if reach 18.
50
What happens if B living at interstates death but dies before attaining 18?
Their issue will take on statutory trusts (unlikely as so young) if no issue, will be ignored asif never existed
51
What property passes outside of will/intestacy rules?
- property owned as beneficial joint tenant - not TIC
- life assurance policies
- life insurance policies
- pension scheme death benefits
- nominated property eg national savings bank:
- life interest in trust property passed via trust
- gifts with reservation of benefit
52
How is an executor appointed?
- will
- codicil
Express provision needed. Can be sole, should appoint substitute.
53
Who can be executor?
Anyone
Should be willing
Minor or person who lacks capacity won’t be granted probate
Spouse can be appointed but if divorce, ineffective.
54
Can an executor renunciate?
Yes, only if not accepted office. Accept office by taking grant or intermeddling with estate. Renunciation must be in writing, signed by executor and contain statement that not intermeddled and signed by dis interested witness.
Must be filed with HMCTS probate service. Can’t be reclaimed. If appointed trusted, will remain a trustee.
May wish to have power reserved instead.
55
What does power reserved mean?
Executor who doesn’t wish to act can have it reserved. Not involved for now but if circumstances change, they can apply for grant at later stage.
56
What is needed to sell chattels?
Death certificate - no need for grant
57
What are the types of grant?
- Grant of probate, where valid will left. Made to executor appointed in will. If solicitors form appointed, partners at date of will entitled to act.
- Letter of administration with will annexed. Deceased left valid will but problem with appointment of executor.
- Letter of administration. Used where deceased died intestate.
- Grant de bonis non. Seconds grant that made if sole or last surviving PR dies, not needed if chain of representation.
58
How many executors can apply for grant?
One can apply and act alone, can’t be issued to more than 4 executors but different parts of estate can have different executors.
59
Who is notice of application for grant of probate given to?
Executors who have power reserved.
60
What’s the effect of a grant of probate?
Gives executors legal authority to deal with estate. Evidence of authority to act on behalf, needed to legally sell property, access accounts etc.
61
Who makes application for letter of administration with will annexed?
NCPR Rule 20 sets out order of entitlement:
- trustee of residuary estate
- any other residuary beneficiary. Vested interests preferred over contingent ones.
- PRs of above other than life tenant of residue
- any other beneficiary or creditor
- PRs of anyone above other than life tenant.
If people of equal rank and one has vested interest and one contingent, vested preferred.
62
When are 2 administrators required?
Where there is a minor beneficiary or a life interest under the will
63
Can a person who is entitled to apply for letter of administration with will annexed renounce?
Yes, not lost by intermeddling.
64
What’s clearing off?
Anyone applying for letter of administration with will annexe or letter of administration must clear off anyone with a better right to grant. Eg confirming executor deceased or renounced.
Achieved by completing relevant part of form when applying. People in same category don’t need to be cleared off so can apply for grant without giving notice to these people.
65
What is letters of administration?
Required where deceased died interstate or where will but all gifts failed.
Gives PRs legal authority to administer on issue. Property vests from date of grant. Limited powers before grant made.
66
What is the order of entitlement for a grant of letters of administration?
NCPR Rule 22 sets out order:
The below need beneficial interest in estate also. PRs of the people below can also apply - have same right as person entitled they represent. Issue have priority over PRs of surviving spouse who died before obtaining grant unless they are beneficially entitled to entire estate.
- surviving spouse or CP
- children of deceased and issue of any pre-deceased child
- deceased parents
- deceased brothers and sisters whole blood (and issue)
- deceased brothers and sisters half blood (and issue)
- grandparents
- uncles and aunts of whole blood (and issue)
- uncles and aunts of half blood (and issue)
- crown
- creditor of deceased.
67
What is a Grant de bonis non?
Second grant made to allow completion of administration of an estate following death of sole or last surviving PR or where previous grant revoked.
Awarded to person who would have been entitled had original PR not taken Grant.
68
When is Grant de Bonis non not needed?
Where PR is one of several PRs or chain of representation exists.
Chain of representation exists where sole or last surviving executor dies and that executor’s executor takes a grant of probate. Only applies if died with valid will.
Executor must administer the estate.
69
What are PRs first responsibilities?
- collect information and documents re estate
- register death
- obtain valuations
- consider validity and any possible claims against estate
- notify Bs of any potential entitlement
- place early adverts for unknown Bs and Creditors
70
How is IHT funded?
Must be paid by PRs to obtain grant.
Ways to fund:
- banks and building societies may released directly to HMRC before grant obtained. Direct payment scheme, voluntary.
- bank loan
- loan from beneficiary
- sale of assets if no grant needed eg chattels
- insurance policy proceeds if paid directly to estate. Insurance company may pay directly to HMRC
71
What should application to court for grant be supported with?
Application
- will and codicils, plus 2 copies
- official copy of death certificate
- further supporting documents if needed eg evidence of due execution, affidavit confirming full name, evidence of knowledge and approval, affidavit confirming what alterations existed at execution, documents referred to in will, witness statements, affidavit of plight and condition if necessary.
- payment for probate fees
72
How can someone prevent issue of a grant of probate?
Lodge a caveat with HMCTS probate service to prevent issue.
Might do it if applicant beneficiary and believes executor lacks mental capacity or will invalid.
73
What’s a caveat?
Prevents issue of a grant.
Valid for up to 6 months. If issue cannot be resolved judge may determine.
74
What is a citation to take probate?
Used where executor has lost right to renounce by intermeddling in estate but not applied for grant and doesn’t intend to do so.
75
What’s the effect of a citation to take probate?
Once cited, the executor must proceed with application for grant of probate. If still don’t, citor can apply for a court order allowing executor to be passed over.
Grant of administration with will annexed can then be applied for.
76
What is a citation to accept or refuse a grant of probate?
Used to clear off a person with a priory right to apply for any type of grant but who has not applied and shows no intention of applying.
77
What is the effect of a citation to accept or refuse grant?
If the cited person doesn’t take out grant, grant may be issued to the citor.
78
What are the duties of PRs?
- duty to collect deceased assets
- duty to administer estate within executors year (12 months)
- duty of care required to ‘act with reasonable care and skill taking account of any specialist knowledge of experience. If professional PRs, need to act in a way that is reasonably expected of them.
- duty to act in best interests of beneficiaries and comply with terms
79
Are PRs liable for losses?
Yes if results from their unreasonable conduct or breach duty of care. Liable to B Ir creditors for losses arising from breach. Eg misappropriation, maladministration, negligence.
Not liable for losses arising from another PRs breach unless negligence an issue.
Court can relieve PR of liability if satisfied PR acted honestly and reasonably and ought to fairly be excused.
80
What administrative powers to PRs have?
- power to sell, mortgage or lease property
- power to appropriate, providing beneficiary consents and no specific B affected.
- power to accept receipts for minors property. Can appoint trustees for minor.
- power to insure
- power to delegate to agents
- power to indemnify themselves for expenses
- power to run deceased business if intend to sell as going concern
- power to invest. Must take into account standard investment criteria.
- power to maintain a minor - s31 TA if minor has interest in income, may apply income to maintenance education or benefit of minor
- power to advance capital - s31 TA allows to advance capital to B if have vested or contingent interest in capital. May be entire presumed share but consent of B with prior life interest needed.
81
Does the act of one PR bind the other?
Sole PR has same power as two or more and can give valid receipt for proceeds of land.
Joint PRs have joint and several authority. Act of one bunds the other. But must all join together for transfer of land and shares.
82
How can a PR protect themselves from claims of unknown beneficiaries or creditors?
Must comply with s27 TA.
Need to:
- place adverts in London Gazette
- place adverts in local newspaper and
- place adverts in any other appropriate newspaper
Requesting any person interested to contact the PRs solicitor within a minimum period of 2 months.
Should also complete searches for land held for creditors and bankruptcy declarations made against deceased and beneficiaries.
83
What should a PR if a known beneficiary or creditor can’t be found?
Options:
- make payment for B or creditor into a court and distribute the rest
- distribute everything with indemnity from B (carries risk that indemnity is worthless)
- seek Benjamin order, order giving PRs leave to distribute estate based on assumption contained in order. Eg missing B should be treated as having died before deceased. Gives full protection.
- purchase insurance against risk.
If don’t do above, remain potentially liable to later claim by missing beneficiary or creditor. Protected if acted as above.
84
How can a PR protect themselves from financial provision claim?
Wait to distribute estate 6 months passed from issue of grant.
85
How can PRs protect themselves from future and contingent liabilities?
Situations where deceased acted as guarentee or loan or possibility of legal proceedings against estate.
To protect from future and contingent liabilities have options:
- estimate and set aside appropriate amount
- seek indemnity from beneficiaries
- arrange insurance and distribute
- apply to court for directions
86
When deciding to sell assets, what should PRs consider?
- should refer to will
- beneficiaries wishes
- tax implications.
87
What is considered a solvent estate?
One where reasonable funeral, testsmentary and administration expenses, debt and other liabilities paid in full. Whether legacies can be satisfied is irrelevant.
88
Where should payment for debts come from for solvent estate?
Secured debts should be discharged from property against secured. Subject to contrary intention.
Unsecured debts should be paid from estate assets in order:
- property indisposed of by will and
- residue if will allows.
Where debts can’t be paid from residue (eg will says debt shouldn’t be paid from residue) should be paid from:
- property specifically given for payment of debts
- property specifically charged with payment of debts
- pecuniary legacy fund (legacies abate proportionately so each share burden) and
- property specifically devised or bequeathed.
89
What’s the doctrine of marshalling?
Can be invoked by disappointed beneficiary (one who’s legacy used by PR to pay debts where legacy within category notable to pay debt) B will compensated for their loss.
90
What is an insolvent estate?
One that has insufficient assets to pay expenses, debts, liabilities in full.
91
In an insolvent estate, in what order must creditors be paid?
Secured creditors have priority. Discharged by selling charged asset.
Payment to unsecured creditors must be in correct order. If so PRs protected from claim if acted in good faith and not preferred one over another.
- reasonable funeral and administration expenses
- preferred debts - wages and salaries of deceased employees in 4 months prior to death, max £800 each.
- ordinary debts, money owed to HMRC and balance of preferred debts
- interest on preferred and ordinary debts
- deferred debts - loans from deceased spouse.
92
Are PRs protected by claims from creditors in an insolvent estate?
If pay category of debt knowing there is higher ranking debts, payment is implied warranty that there are sufficient assets to meet all higher levels of debt which they have notice. It not sufficient assets, personally liable.
If pay interior debt without notice of higher debt, not liable provided did not act with undue haste
93
Can PRs prefer one creditor over another in same category?
No, but protected if payment to a creditor in full is made before payment made to others and estate turns out to be insolvent. PRs protected if acted in good faith and no reason to believe insolvent.
94
How can changes be made to distribution after death?
2 methods
Disclaimers - B can disclaim an inherited gift orally or in writing unless accepted any benefit from the gift. Must be in writing to be effecting for IHT and CGT purposes. Disclaimed gift usually falls into residue or if the gift is the residue, partial intestacy. B cannot determine where it goes.
Variations - allows B to change who receives it. Requirements must be met.
95
What are the requirements for an effective variation?
To be effective for IHT and CGT purposes (to be read back to date of death Asif T left it to them) must be:
- in writing
- made within 2 years of death
- not for monetary consideration
PRs must sign if IHT liability increases.
Partial variation is possible and can be made even if original B accepted benefit
96
Who is a varied gift taxable to?
Usually variation will be transfer for IHT and disposal for CGT purposes made by original beneficiary.
97
How can PRs vest gifts in beneficiaries?
Chattels - transfer by delivery in return of receipt
Shares - STF completed and sent with office copy of grant and share certificate
Land - transfer requires assent in writing. B needs to register interest at HMLR
Costs born by B unless will says otherwise.
98
How are pecuniary legacies paid?
Will usually states source from which should be paid, usually residue.
Debts before legacies.
Pecuniary legacies carry interest if not paid by due date. At basic rate. Usually due within executors year.
99
What if there are not enough funds to satisfy pecuniary legacies?
They abate (reduce) proportionally unless priority given to a particular one.
100
Can a B ask PRs to use particular asset to satisfy pecuniary legacy?
Yes, appropriation.
101
How can PRs show obligations in relation to legacies satisfied?
By obtaining reciepts.
Minors can’t give good receipt
Options
- hold property until 18
- use power of appropriation (minors parent/guardian or court need to give consent) until 18
- appoint trustees to receive and hold until reaches 18
- pay legacy to court
102
Are PRs entitled to charge for services?
No unless authorised.
- May be a legacy to appointed executor, presumed to be conditional upon accepting office but can be rebutted
- express charging clause
- agreement with beneficiaries
- court can authorise
103
How can PRs be discharged?
By endorsing accounts, sending to residual B for them to endorse and then formally discharge PRs with agreement to indemnify them against all claims and demands
If B refuses, PR can ask court to approve or pay Bs share to court
104
What is an assent?
The PRs acknowledging that they do not require an asset for administration and transfer it to a B.
Vests legal estate in that B.
Dates back to date of death so B entitled to all income rents etc from death
105
What are the requirements for an assent?
No particular form for personalty.
If land, must be in writing, signed by PRs, and name person whose favour given.
Needed even if PR is B.
Will be needed when PRs hold land under trust. Will formally vest legal title as Trustee.
106
What must PRs do after assent given for land?
If unregistered, need to ensure subject to first registration.
If registered 2 options:
1) PRs can apply to be registered as owner in place of deceased producing grant on application or
2) they can transfer by assent to B who will then apply to be registered owner, submitting certified copy of grant.
107
How can a purchaser be protected when an assent may have been given?
When buying from PRs or B who given assent, should insist on statement in transfer that no previous consent been made. Protects unless notice to contract.
If purchaser buying from B, assent from PR to B is sufficient evidence that B is entitled to legal estate.
108
What are beneficiaries rights?
Right to have estate property administered
No legal or equitable interest in asset until administration competed.
May have an interest in income arising from death.
109
What remedies do beneficiaries have against PRs?
- personal action against PRs
- trace and recover property of estate from PR or recipient. Not bona fide purchaser.
110
What is the time limit for an application under the inheritance (provisions for family and dependants) act 1975?
6 months from issue of grant or later with leave of court.
111
What does an application under Inheritance (provision for family and dependents) act 1975 do?
Set aside or vary terms of will or intestacy on grounds that reasonable financial provision not been made for applicant.
112
Who can apply under Inheritance (provision for family and dependants) act 1975?
Statutory list.
- surviving spouse or CP
- former spouse or CP who not remarried, may be bared through clean break divorce
- child or person treated as child (includes step child) non dependent adult children unlikely to be successful.
- person being maintained wholly or petty before death. Need to have been making substantial contribution towards reasonable needs
- person who was living with deceased for whole of 2 years before death as partner.
113
What is reasonable financial provision?
2 questions
Has the will or intestacy rules failed to make reasonably financial provision?
If so, what would be?
114
What is the standard for reasonable financial provisions for spouses?
Such as would be reasonable in all circumstances whether or not needed for maintenance.
Court should consider what would be awarded on divorce.
Court has discretion to apply spouse standard to former spouses if death occurs within 12 months of decree absolute and no final orders made.
115
What is the standard of reasonable financial provision for other applicants?
Amount required for their maintenance so can live decently and comfortable according to situation
Objective.
116
What will the court consider when determining reasonable financial provision?
- financial resources and needs of applicant, any other applicant or any beneficiary. Now and in future
- any mortal inflation on deceased to any applicant
- size and nature of estate
- physical or mental disability
117
What orders can the court make if find reasonable financial provision not given?
Transfer of property
Payment of lump sum
Payment of income
Settlement of property on trust
118
How can someone challenge will based on undue influence?
Challenge validly on basis of lack of intention. Must prove lack of intention.
No presumption of undue influence applies to wills, must be proved.
119
When doesn’t the presumption of knowledge and approval apply?
Where testator is blind or illiterate or suspicious circumstances
120
What will the court take into account when deciding whether will invalid for want of knowledge and approval?
- whether Will was clear and short
- whether testator was literate
- surrounding facts
- suspicious circumstances
121
What is propounding a will?
Taking legal action to have it authenticated as part of probate process.
All interested parties involved.
