WILLS & ADMIN

Question 1

When might personal claims against a wrongful trustee be innaprpriate?

Answer 1

1. T is insolvent
2. T actually bought something desirable
3. wrong doing happened long time ago. claim is statute barred after 6 years (unless fraudulent breach)
4. They can’t be found

Question 1

what are the defences against personal claims

Answer 1

1. consent
2. exluded liablity by trustor
3. s 61 of TA 1925 - courts idcretion to relieve if T acted honestly and reaosnably.
4. limitation and lache (starts at date of breach)

Question 2

Re Oatway tracing rules

Answer 2

can exercise a lien over mixed assets and any assets purchased w it

Question 3

Re Hallet tracing rules

Answer 3

the wrongdoer is thought to have spent their own money first

Question 4

Describe the elements of a claim for accessorial liability?

Answer 4

A breach of trust, which the defendant assisted, the defendant acting dishonestly (the test for dishonesty being objective).

Question 5

What are the categories of applicants that can claim under the Inheritance (Provision for Family and Dependants) Act 1975

Answer 5

a. Spouse or civil partner
b. Former spouse or civil partner who has not remarried
c. Child of deceased (regardless of age) incl adopted
d. Anyone treated by the deceased as a child of the family in relation to any marriage / civil partnership
e. Anyone who was being maintained by the deceased immediately before death (dependant)
f. Anyone who lived in the same household as the husband/wife or civil partner of the deceased 2 years leading to death

Question 6

what is the time limit on applications under the Inheritance (Provision for Family and Dependants) Act 1975

Answer 6

Applications must be made within 6 months from the grant of representation

Question 7

How can PR’s protect themselves from perosnal liablity under the Inheritance (provision for Family and Dependants) Act 1975

Answer 7

not distributing estate until 6 months after issue of probate.

Question 8

What countries did the testator have to be domiciled to, for an applicant to be successful in family provisions?

Answer 8

England or Wales

Question 9

if a non-married partner wants to make a claim under family provisons, how long must they have lived w the deceased before death?

Answer 9

2 full years

Question 10

if a PR is guilty of maladminitration, what claim can the beneficiaries make?

Answer 10

A devastavit claim.
- beneficiary can recover compensation from the recipient who was wrongly paid.
-The compensation will be equal to the amount which the beneficiary cannot recover from the PRs.