WILLS Flashcards
(104 cards)
1
Q
Grant of authority for the deceased’s estate
A
Grant of probate: by will, for executors
Grant of representation: intestacy, for administrators
2
Q
DMC
(donationes mortis causa)
A
The gift is made
- conditional on death
- in contemplation of death
- from an identifiable cause which
- the donor believes it to be imminent
- donor must part with the ‘dominion’
3
Q
Properties NOT passing to succession estate
A
1- DMC
2- Discretionary pension scheme
3- Insurance policies written into trust
4- statutory nominations
5- property held as beneficiary tenants
6- other beneficial interests under trust & properties held in a trust
4
Q
Executors can step down freely, UNLESS
A
they have intermeddled with the estate.
ie. They started the process
Note that organising/funding a funeral is NOT intermeddling.
5
Q
Can beneficiary also be PR of the estate?
A
Yes,
A beneficiary can be a PR (one of executors or administrators).
6
Q
When a person died intestate, if there is no issue nor spouse,
what is the statutory of entitlement to the estate?
A
1- parents
2 - siblings of whole blood
3 - sibling of half blood
4 - grandparents
5 - uncles & aunts of whole blood
6 - uncles & aunts of half blood
7 - Crown in bona vacatia
Whole estate passes to next living person entitled under statutory order of priority.
7
Q
Gifts of property
A
1- legacy for chattels & personal items
> Specific legacy: specific item/chattel
> demonstrative legacy: money in bank accouny, cash
> collection
2- devise for real property (land, real estate)
8
Q
Max nb of executors who can apply for grant of probate?
A
4
9
Q
when should testator have capacity for a valid will?
A
at the time of execution of the will
10
Q
golden rule for testamentary capacity
A
11
Q
can beneficiary be a witness to the will?
A
NO
exception can apply
- professional executor
- other than B, there are 2 more witnesses
12
Q
can beneficiary be the executor of the will?
A
Yes if B is not the sole executir
s15 WA
13
Q
ELEMENTS OF A VALID WILL
A
1- AGE
2- TIMING
3- TESTAMENTARY CAPACITY
4- FORMAL REQUIREMENTS [s9 WA]
5- KNOWLEDGE & APPROVAL
14
Q
What happens if deceased passed intestate and either spouse and/or issue exists?
A
Spouse must survive by 28 days (‘survivorship rule’).
* spouse + no issue = spouse entitled absolutely (note. spouse fully exempt from IHT)
- no spouse + issue = issue entitled as statutory trust (subject to IHT in full)
- spouse + issue =
o spouse: personal chattels + £322,000 (‘statutory legacy’) + ½ of the residue
o issue: ½ of the residue
15
Q
What happens if deceased passed intestate and there is no surviving issue or spouse, but issues of the issue exists?
A
Issues of the issue inherit all. If the following conditions are satisfied:
- If the issue does not survive the deceased their own issue may still inherit their entitlement under the ‘substitution limb’ of the statutory trust:
Issues issue can inherit in their place provided that this issue themselves satisfy the contingency limb.
- The contingency limb: Each entitled beneficiary must survive the intestate and reach the age of 18 to inherit.
Until this requirement is satisfied, the beneficiary has a contingent interest. [statutory trust]
=> if already over 18, vested interest.
16
Q
What happens if deceased passed intestate and there is no surviving issue or spouse?
A
STATUTORY ORDER OF ENTITLEMENT
1. Parents
2. Siblings of whole blood (share both parents) on the statutory trusts
3. Siblings of half blood (share one parent) on the statutory trusts
4. Grandparents
5. Uncles and aunts of whole blood (whole blood siblings of a parent) on the statutory trusts
6. Uncles and aunts of half blood (half blood siblings of a parent) on the statutory trusts
7. The crown as bona vacantia
=> OR THEIR ISSUE
Where there is more than one person in the relevant category (e.g. if the intestate is survived by both parents), the succession estate is divided equally.
17
Q
Where can a IPFDA 1975 claim can be made?
A
both when:
- intestate deceased
- there is a valid will
18
Q
IPFDA claim eligibility conditions
A
1- within jurisdiction, domiciled in England and Wales
2- claimant falls within category of eligible applicants
3- make the claim within the prescribed time limit
> within 6 months of the date of grant of representation was made
> could be extended at court’s discretion
4- Grounds for making a claim
> deceased dinn’t make reasonable financial provision for the applicant
> intestacy rules fails to make reasonable financial provision of the applicant
Order made under IPFDA will be made out of the ‘net estate’
19
Q
Succesful IPFDA claim
- order
- deemed date of effectivity
- effect
A
- order nade out of the ‘net estate’ of the deceased.
- deemed to be effective from the date of death.
- impact/effects:
> will remains valid
> effects the estate
> reduces the estate of existent beneficiaries.
20
Q
Relevant factors and standard of financial provision to be considered for IPFDA claim
A
- need of necessaries
- size & nature of the estate
- obligations
- conduct/other matters
- actual relationship between C and deceased
- disability
- standards of financial provision
(1) surviving spouse standard
(2) maintenance standard
21
Q
How can a will be contested to be invalid due to undue influence?
A
BoP is on the person alleging the undue influence.
Must be beyond persuasion. There must be pressure, coercion, inexistence of testator’s intention.
If claim of undue influence is successful:
- invalidates the will
- partial or full intestacy
22
Q
DEED OF VARIATION
A
- settlemet following death.
- complete or part of inheritance
- after accepting the inheritance
- time requirement: within 2 years from date of the death.
- provides tax benefits.
- must satisfy s142 IHTA conditions
- ‘read back’: treated as if it’s made by the deceased. (if variation NOT made for consideration of moeny) [so not as a PET from original beneficiary]
- need not PR’s approval (UNLESS additional IHT is caused)
- after variation deadline it will be called ‘out of court settlement’.
23
Q
Does joint properties (joint bank account or joint tenancies) form part of succession estate?
A
No BUT included in the taxable estate.
24
Q
Deadline to obtain grant of probate?
A
Within 6 months of death.
25
IHT and CGT consequences of post-death arrangements
Beneficiary is free to dispose of the estate.
CSQs:
1- IHT
> original beneficiary ('OB') makes a PET
> chargeable transfer if OB dies within 7 years of the gift
2- CGT
> gift of no-cash asset will be treated as capital disposal subject to CGT
> any increase in value of the asset since the date of death would be subject to CGT
[this is where the increase is greater than B's tax-free allowance].
26
Post-death arrangements
1- variation (after accepting inheritance - treated as a 'read back')
2- disclaimer
3- precatory trust
4- court order IPFDA 1975
5- capital distribution from testamentary trust within 2 years of death
27
DISCLAIMER
Post-death arrangements
= Refusal to accept property.
- B can only disclaim BEFORE accepting the inheritance.
- can only disclaim the WHOLE (not part of inheritance - no cherry picking)
- OB cannot control who receives the disclaimed inheritance.
28
Cumulative Total
Total chargeable value of all the chargeable transfers made within the 7 years up to death.
The value is assessed by refrence to loss to the donor at the date of the transfer.
29
Identification of the value transferred
PET and LCT
If transfer of:
- cash: same amount transferred
- other property: market value of the item at the time of transfer>
30
Is transfer of £250 to somebody as a gift a chargeable transfer?
NO - small gift allowance.
Applies per recipient. A transferor can make multiple gifts of up to £250 to as many different people as they like.
The small gifts allowance is not available if combined with any other exemption, including the AE.
31
Marriage exemption
Per mariage & per person.
- by parents: £5000
- by one party of the marriage to another: £2,500
- by grandparents or remoter ancestor: £2,500
- by anyone else: £1000
> Must be for a specific mariage.
> Relief applies per donor (if both parents of both fam made such don, £20k can be claimed).
> Can be used together with AE (for lifetime transfers).
32
s142 IHTA conditions
POST-DEATH ARRANGEMENTS
1- made by original B in writing (deed not required but used frequently)
2- within 2 years of death
3- contains an express statement by the B confirming s142's application
4- must not be for consideration or money's worth
33
if the variation results in additional IHT being due in respect of the deceased's
estate, the PRs should:
[POST-DEATH ARRANGEMENTS]
* Sign the variation
* Provide HMRC with a copy of the written variation and pay the amount due.
34
When can PRs refuse to sign the variation [ie. approve wiriting back] under s142?
ONLY if the assets held by PRs are insufficient to discharge the additional tax payable.
35
Available NRB
Full NRB - cumulative total
36
When will 'grant of letter of administration with will' be possible?
- Valid will
BUT
- no executor willing/able to act
SO
- need for appointment of administrator
37
When is a grant NOT required to distrubute succession estate?
succession estate up to £5000 under small payments act
38
Duty of distribution and administration of succession estate by PRs - must be exercised within (___)
within a reasonable time (12 months). Over 12 months, PRs must justify the delay.
It also entails:
Duty to distribute and administer
- with due diligence
- avoid position of conflict
- administer in full
39
When should IHT be paid?
Pre-grant.
Statutory duty to provide info on esrare to HMRC and pay IHT due before obtaining grant of probate.
- Grant will not be issued until reported ti HMRC and paid IHT.
- Form IHT400 must be completed and sent to HMRC.
40
Available reliefs/exemptions for both lifetime & death estate
- spouse exemption
- charity exemption
- business property relief
- agricultural property relief
- family maintenance exemption
- gifts to housing associations
- political party exemption
- gifts to national purposes/heritage maintenance funds
41
How can a person mitigate against the risk of dying within 7 years of making PET?
By taking out a fixed-term life insurance to cover costs of any IHT on PET.
42
NRB
2024/25
£325,000
43
Conditions for Residential NRB
[24/25 RNRB]
Conditions
1- deceased on or after 6 apr 2017
2- estate included a Qualifying residential interest ('QRI')
3- QRI was 'closely inherited' by a 'direct lineal descendant'
£175,000 (up to £2m)
There is no RNBR for net estate worth £2.35m or more (or £2.7m where transferred RNRB applies).
Does not include rental investment properties.
44
Where does presumption of knowledge and approval does not apply?
1- testator himself does not sign and the attestation clause does not reflect what occured
2- where the person who prepared the will (solicitor) is also a beneficiary.
Solicitor must prove that the testator did know and approve its contents.
45
Solicitor did not advise on the effect of s15 WA regarding witness who was the spouse of a beneficiary.
Is the solicitor liable?
YES - negligent legal practice
Solicitor has the duty to advise a client on howto execute their will and the effect of wrong execution of the will.
46
If testamentary capacity cannot be confirmed after obtaining medical practicioner's opinion that TC cannot be confirmed. What should the solicitor do?
a will should NOT be prepared.
The only will which can be made is a statutory will following an application to the Court of Protection under s 16 Mental Capacity Act 2005.
47
Can a solicitor take instructions on drafting a will from someone other than the testator?
Yes, but only if the third party is appropriately authorised and the solicitor has no reason to suspect that the instructions do not reflect their client's wishes.
48
Should a solicitor agree to draft a will for a client who is proposing to leave a gift to the solicitor in their will?
A solicitor is not absolutely prohibited from acting in these circumstances but there is a potential conflict of interest.
They should not act where the client is proposing to make a significant gift to the solicitor unless the client takes independent advice.
49
What should a solicitor do if a client's testamentary capacity is in doubt?
GOLDEN RULE
1- Obtain the client's consent to approach their medical practitioner for confirmation of capacity and make a record of the findings.
2- The solicitor should only prepare a will if capacity is confirmed.
3- It is advisable for the doctor to act as a witness and record their findings.
50
A man leaves the following gift in his will:
· My Rolex watch to John
At the time of his death the man no longer owned the original Rolex watch but had replaced this with a new Rolex watch.
What will beneficiary receive?
NOTHING
The watch is a specific legacy.
Under s.24 Wills Act the general rule is that the will speaks from the date of death.
However, use of the word ‘my’ indicates a contrary intention to the GR indicating the man was referring specifically to the watch he owned when he made the will rather than the watch he owned at the date he died.
51
A man leaves the following gift in his will:
· My BT shares to Althea
At the time of his death, his BT holding had increased to 200 shares from the 100 shares he had when he made the will.
What will beneficiary receive?
Althea will receive the 200 BT shares.
This is a collection of item as legacy capable of growing.
Holding of shares or a collection of items that is capable of growing, the use of word 'my' does NOT alter the general position and the gidt is construed as the holding or contents of the collection at the date of death.
52
A man leaves the following gift in his will:
· £5,000 to be paid from my Sussex Building Society account to Hayley.
At the time of his death the man, the Sussex Building Society account had a balance of £4,000.
Hayley will the receive £4,000 from the Building Society Account together with £1,000 from the general estate, provided there are sufficient funds.
The gift of the money in the building society is a demonstrative legacy.
If there are insufficient funds in the designated account these are made up from other assets in the estate in the same way as a general legacy.
53
A woman leaves the residue of her estate in the following shares:
· 50% divided into three equal shares with one share for each of my children
· 50% divided into two equal shares with one share for my brother and the other share for my sister
One of the woman’s three children predeceased her leaving a daughter, the woman’s granddaughter.
The woman’s brother also predeceased her leaving a son, the woman’s nephew.
Which of the following best describes how the residue will be distributed?
The daughter’s share will pass to the granddaughter. The gift to the brother will fail and there will be a partial intestacy of his share.
BCS
S33 only applies to gifts to the testator's issue and does not apply to gifts to other beneficiaries. The brother’s share does fail and there will be a partial intestacy.
This contrasts with the statutory trusts which apply on intestacy (s 47 AEA) where the substitution provisions apply to a wider category of relative and not just issue.
54
A woman dies, leaving a will which provides that her property is to be held upon trust for her husband for his life and after his death for such of her son and daughter as survive her husband and attain the age of 25 in equal shares.
The woman’s son is 23 and her daughter is 25.
Which of the following correctly describes the respective nature of the husband, son and daughter’s interests?
The husband has a vested interest and the children have contingent interests.
BCS children's interest is contingent upon attaining age of 25 AND surviving the spouse.
Whilst the daughter has satisfied the age contingency her interest is still contingent on surviving her father which is not yet satisfied. The son’s interest is contingent on reaching the age of 25 and surviving his father.
55
Statutory nominations
IHT
A person can make a written nomination of monies in any following account:
- friendly society
- industrial society
- provident society
The amount of cash for each account must not exceed £5K.
such monies DO form part of the taxable estate [subject to IHT]. BUT they do not pass to succession estate.
Benefits will be released upon issue of death certificate.
56
Grant of double probate
Applicable and only convenient where powers of executor are reserved, so applicant must apply for double grant to administer the estate.
Keep in mind that you can only apply as executor if administration is incomplete.
57
In a valid will, spouse is appointed as an executor and trustee. But later, testator divorces/disolves their partnership. What happens?
Appointment becomes ineffective.
58
General legacies
A gift of property not distinguished from property of a similar type (eg. ‘a’ rather than ‘my’).
Generally, doesn’t fail because PRs would have to buy the specified property if its not a part of the estate at the time of death; and if they cannot find that specified item, gives the equivalent sum to the B.
59
Demonstrative gifts
It directs a sum that should be paid out of a specified fund.
Instead, if the specified fund has ceased to exist or inadequate, beneficiary is entitled to receive what is left in the fund and to have the balance of the legacy paid as a general legacy [if available].
60
Residuary gifts
All of the testator’s property which has not been disposed of under the will or any later codicil.
Failure to draft properly will render the estate partially intestate.
61
Personal chattels are tangible movable properties.
BUT it excludes:
- money and securities for money
- property used by the intestate at their death solely or mainly for business purposes
- property held at the death of the intestate solely as an investment
62
Validity requirements for a CODICIL
The rules relating to the validity of a will also apply to any codicil.
To make a valid codicil a testator must have testamentary capacity, knowledge and approval (also - of the codicil, and the will and any previous codicils referred to) and comply with s.9 Wills Act 1837.
63
CODICIL
- definition
- effect
- use
A codicil is a formal testamentary document that amends an earlier will, rather than replaces it, and both documents remain active and are intended to be read together.
Codicils may be used to:
* create new provisions in a will
e.g .add a legacy fora new beneficiary
* edit existing provisions in a will
e.g. change the value of a pecuniary legacy
* revoke provisions in a will
e.g. remove a particular beneficiary’s entitlement
64
Rule 20 NCPR - Order of priority for grant where deceased left a will BUT no executor willing/able to act
1) executor
2) trustee of the residuary estate (residuary beneficiary holding in trust)
3) Any residuary beneficiary (entitled absolutely or for life) or where there is a partial intestacy, a beneficiary of the estate under intestacy.
4) PRs of anyone in (3) other than a trustee or life tenant of the residue
5) any other beneficiary or a creditor
6) PRs of anyone in (4)
They must apply for grant of letters of administration with will annexed.
65
GENERAL RULES for Rule 20 NCPR
[Order of priority for grant where deceased left a will BUT no executor willing/able to act]
1- A person in one category cannot apply if anyone in a higher category is able and willing to act as administrator.
2- Those within the same category have an equal right to apply.
3- BUT beneficiary with vested interest is preferred over one with a contingent interest.
4- Applicant must explain why anyone with a better right to apply is not doing so (‘clearing off’).
If one of multiple residuary beneficiaries apply, must clear off.
66
Entitlement to the estate under intestacy
Rule 22 NCPR -
APPLICATION FOR GRANT OF LETTERS OF ADMINISTRATION
[order of priority]
The statutory order of priority for entitlement to apply to be appointed as administrator under a grant of letters of administration is:
1) surviving spouse or civil partner
2) children of the deceased
3) father and mother of the deceased
4) whole blood siblings (share both parents)
5) half-blood siblings (share one parent)
6) grandparents
7) uncles / aunts of whole blood
8) uncles / aunts of half blood
-- or their issues --
9) If there is no-one who can apply from the list:
* The Crown (claiming bona vacantia) may apply (22(2))
* If the Crown does not apply, a creditor, or person who does not receive benefit (but would have done if the estate was larger) may apply.
67
Clearing off
- When a person dies with valid will but grant of Letter of Administration applies, the entitlement to the grant correlates with the distribution of the estate under the will, not the applicant's familial relationship with the deceased.
- A person in one category cannot apply if anyone in a higher category is willing to act.
- If there are no trustee/executor/higher category exists all other benef° have equal right.
- If no one is willing/able to apply, the applicant must explain why with anyone with a better category is not applying. (justify only for higher category not equal).
68
Categories under IPFDA eligible to apply:
1- spouse/civil partner of the deceased
2- former spouse/civil partner who has not remarried or formed a subsequent civil partnership
3- a person (other than spouse/c°p°) who cohabited with the deceased as if they were spouses for 2 years prior to their death
4- a child of the deceased (adopted or natural)
5- any person who was treated by the deceased as a child of their family (eg. stepchild)
6- any other person who was maintained (wholly or partly) by the deceased immediately before death – maintenance must be financial not only emotional
69
PA1A form
Form required to be filled when there is no valid will, online application.
70
PA1P form
Form required to be filled we have a no will but its paper application.
71
'Qualifying residential interest’ (QRI) for RNRB
QRI= residential property interest which is part of deceased’s estate immediately before death.
If deceased had more than 1 residential property in their estate at death, PRs must nominate one of them as QRI.
QRI must be ‘closely inherited’ by a ‘direct descendant’.
Full RNRB up to £2m net estate.
Reduced if between £2m-£2,35m. [1 pound for every 2 above 2m threshold]
There is no RNRB available at all for net estates over 2,35m or more (or 2.7m where a full transferred RNBR applies).
72
Woodlands relief
IHT
Available relief only for death estate.
100% tax deferral.
If deceased purchased woodlands, they must have owned it for at least 5 years prior to death.
If woodland is inherited by the deceased, there is no qualifying period of ownership.
It is a deferral of the IHT which would otherwise payable on the value of the woodland.
Tax deferred until the timber [not the land] is sold or given away.
Value of the woodland = value of the trees [the timber] not the land itself
73
Annual Exemption
Available for lifetime transfers only.
£3k for each tax year, max £6k can be used together.
AE must be used after any other available exemption or relief is applied.
A maximum of 2 x AE (£6,000) may be available to use against a transfer.
74
Normal expenditure out of income exemption
A transfer of value is exempt if made:
- from the donor’s income (not capital)
- as part of a normal/regular pattern of giving, and
- do not affect the donor’s standard of living.
There is no upper limit to this exemption.
HMRC are more likely to accept the relief applies if transfers are made under a legal obligation, or there is clear history of a settled pattern of giving (e.g. monthly payments).
75
TAPER RELIEF
- When does taper relief take effect?
- What are the reductions in amount of IHT due?
After calculating the final tax. It takes effect as a proportionate reduction of the final tax bill (reduces amount of IHT due).
Date of transfer - Reduction
0-3 years before death: NO taper applies
3-4 years before death: 20% reduction
4-5 years before death: 40% reduction
5-6 years before death: 60% reduction
6-7 years before death: 80% reduction
76
Business property relief
[Conditions and reliefs]
1- must be a qualifying business assets
2- deceased owned the business assets continuosly for at least 2 years immediately prior to the relevant transfer.
(except sold and replaced, then it would be treated as continuous)
Ratios:
- Unquoted shares 100%
- Quoted shares 50% (only if deceased have controlling interest)
- Business or interest in a business 100%
- assets owned by taxpayer but used for business purposes 50%
77
Business property relief does NOT apply where:
A business (or interest in a business), or shares in a company, are not business property if the business concerned consists wholly or mainly of:
- dealing in securities, stocks or shares, land or buildings, or
- making or holding investments. Rental property is considered an investment asset.
78
Testamentary capacity
(Banks v Goodfellow)
* Understand the NATURE of the act and its effects;
* Appreciate the EXTENT of the property of which they are disposing;
* Understand and appreciate the MORAL CLAIMS to which they ought to give effect; and
* Have NO DISORDER OF MIND that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will.
Testator must have testamentary capacity at the time the will is executed.
79
Exception to timing requirement: lack of testamentary capacity at the time of execution but still can be valid if
- had testamentary capacity at the time they gave instructions for the will
- the will was prepared in accordance with those instructions
- at the time of execution, the testator understood they were signing a will for which they had previously given instructions
80
Rule = any gifts to an attesting witness (or their spouse) are void under s15 WA.
Exception = ?
- if professional executor entitled to a charge for their service s15 doesn’t apply
- appointment of beneficiary remains as executor remains effective even if s15 applies
- if there are at least 2 other witnesses not caught by s15, or the will is subsequently confirmed by a properly executed codicil, effect of s15 will be disregarded
81
Formality requirements under s9 WA
1- in writing
2- signed by the testator (or by other person in his presence and by his direction)
> any mark may constitute a signature if testator intended it to be, but signature is preferred
3- signature intented to give effect to the will
> better be at the end of the will
> signing beginning/middle can be problematic
4- signature is made/acknowledged by the testator in the presence of 2 or more witnesses present at the same time
> 2 min witnesses
> witnesses must be physically and mentally present but need not know the terms of the will
> witness cannot be blind, drunk, or of unsound mind
5- each witness attests or acknowledges in the presence of the testator (but not necessarily of any other witness)
> witness must sign in front of the testator
82
If a testator wants to alter their will they should usually be advised to (___)
make a new will.
83
If a codicil does not expressly state the extent to which the testator confirms or revokes the earlier will.
What is the effect of the codicil?
There is a presumption (rebuttable) that the terms of the original will remain where possible.
The codicil will only revoke an earlier will to the extent there is inconsistency between them.
If any inconsistencies arise with regards of the date of the will [or earlier codicil], affidavit evidence can be provided to explain the discrepancy.
84
Types - Making manuscript amendments to the original will.
[HAND ALTERATIONS]
1- OBLITERATION
Text has been crossed out in such way that the original taxt is illegible ie. unreadable.
> if original words are indecipherable/illegible, the alteration is effective if the intent was revocation.
2- INTERLINEATION
Where writing has been inserted between the existing lines of the document, often add something that was previously omitted.
> completion of blank spaces are presumed to have occurred before execution (rebuttable).
3- OTHER ALTERATIONS
Include additions added to the end of the will, a strike through of text which is still legible.
85
Are amendments made after the execution of the will valid?
No UNLESS executed as a will.
86
Presumption for alterations
Alterations are presumed post-execution unless proven otherwise.
Exception:
- completion of blank space (presumed to have occured pre-execution)
- if original words are indecipherable/illegible, the alteration is effective if the intent was revocation.
87
When will post-execution alterations be valid?
If attested and executed as per s9 WA.
- Signature or initials must be placed near the alterations (attested).
- Witnesses need not be the same as for the original will.
88
Obliteration - special cases
GR = if original words are indecipherable, the alteration is effective if the intent was revocation.
Special Cases=
1- apparent and non-apparent wording:
> apparent if it can be deciphered naturally without extrinsic evidence.
> if obliteration was intention for conditional revocation, and substitution fails, the original gift (if discernible) prevails.
2- conditional revocation: if subsititution (eg. new amount) is unsuccessful, the original gift will be given effect
89
Manuscript changes are appropriate:
[HAND ALTERATIONS]
1- when amendments are minor and do not affect interpretation (eg. types, address corrections)
2- in urgent cases where a codicil or new will cannot be prepares (eg. imminent travel or hospitalisation)
ALL alterations, even minor, should be intialled by the testator and witness.
90
What alterations will be given effect to?
1- made before execution of the will/codicil
2- obliterations with intent to revoke
3- attested alterations [also executed]
4- completion of a blank space (presumed to have been completed before execution)
5- subsequently confirmed by re-execution or codicil, with reference to the alteration.
91
What alterations will NOT be given effect to?
1- made after execution of the will/codicil (provided original gift is still apparent)
2- Obliterations
> without intent to revoke
> by 3rd parties
> as conditional revocation (provided that extrinsic evidence of the original gift can be found)
3- unattested alterations (presumed to have been made after execution)
92
Best way for PR's protection against testator's creditors
s27 TA protects from personal liability.
Applies against unknown creditors.
Notice procedure: place an advert in the London Gazette (and a newspaper local to the area in which the woman’s house was situated) and wait 2 months from the date of the advert.
After 2 months of placing the advert, PR can distribute the estate.
93
Does DMC form a part of the succession estate?
NO
But it will be subject to IHT.
93
Can an executor renounce probate without asking consent of co-executor, assuming that he did not not intermeddle with the estate?
YES
As long as the PR have not intermeddled with the estate, an executor can renounce probate.
No consent is required from the co-executor.
93
Can an executor moving abroad for 2 years continue to act?
YES
An executor may continue to act from abroad.
To be unavailable (so not able to act) moving abroad only is not sufficient.
94
The deceased left a valid will but the sole executor appointed under the will pre-deceased the testator the relevant grant is letters of administration with the will annexed. The right to apply is determined by [___]
NCPR 20, under which those who have a beneficial entitlement under the will (bcs original executor died) have the best right to apply.
95
Min nb of PRs for a will with minor interests?
2
96
If there is enough money in the testator's bank account to cover IHT due. What is the best option to pay IHT?
Direct Payment Scheme
The bank will settle the IHT bill directly.
97
A house jointly owned with the deceased but not as a spouse/civil partner. What will be the IHT application?
Half of the value less a percentage discount to reflect the fact that the house was co-owned.
It is irrelevant whether property was owned as joint tenants or tenant in common.
98
The main types of property which will not pass to the succession estate are:
* Donationes mortis causa
* Discretionary pension scheme benefits
* Insurance policies written in trust
* Statutory nominations
* Property held as beneficial joint tenants
* Some other beneficial interests under trusts & property held in a trust
- life interest in a successive interest trust
- remainder interest passes to the estate only if interest is vested.
99
Agricultural property relief (APR)
For APR to apply the property must have been occupied for agricultural purposes for at least 2 years (if owner occupied) or 7 years (if someone else occupied).
APR of 100% of the agricultural value of the property can be claimed in most cases (but if the property was subject to a tenancy that started before September 1995, 50% relief would usually apply).
APR is claimed ONLY in respect of the agricultural value of the land, not the market value.
Conditions:
- land/building used for purposes connected with agricultural activity.
- farmhouse/cottage may qualify if they are of a ‘character appropriate’ to the associated agricultural land and have been occupied for the purposes of agriculture. [not someone occupying purely for domestic reasons]
100
Leaving estate to charity
To qualify for an IHT exemption a gift must be made to a charity that comes within the jurisdiction of the High Court in England, Wales or Northern Ireland or the Court of Session in Scotland.
In addition to charity exemption, which will apply to the charitable gift itself, a reduced
rate of IHT (36% instead of 40%) is available in respect of the chargeable assets in the estate IF the deceased leaves at least 10% of their net estate to charity.
101
Spouse exemption - life interest trust
On a person's death, spouse exemption will apply to the value of assets transferred to a life interest trust if the surviving spouse receives a life interest (i.e. named as the life tenant).
BUT
Spouse exemption does not apply if they receive a remainder interest i.e. named as the remainder beneficiary.
102
