wills + admin Flashcards
three main sets of rules for validty of wills
formalities (s9), capacity and intention
ALL of these elements must be present. (tripod theory).
testamentary capacity:
at least 18 years old
parker v felgate: if there was capacity when instructions were given if the will was prepared in accordance with those instructions and of now the testator understands that they are signing a will prepared in accordance with those instructions even if they cannot remember those instructions then there is sufficient capacity on execution for the will to be valid.
the common law banks v good-fellow test
- did the testator understand the nature of the will and its effects?
- did the testator understand the extent of the property they were disposing off by will
- did the testator understand the claims to which they ought to give effect
- did the testator understand the nature of the will and its effects?
intestacy order of entitlement
1 if there is a surviving spouse but no issue; they will recieve the whole estate.
- if there is a child or children but noi surviving spouse: the children will inherit under statutory trusts
- if there is both a surviving spouse and a child/children: the surviving spouse will recieve the statutory legacy of 270,000 + all personal chattels of the deceased + the residue of the estate. the children will recieve the remaining 50% of the residue of the estate under statutory trusts.
if there is neither a surviving spouse nor children
- deceased’s parents n equal shares if not
- full brothers and sisters if none then to
- the deceaseds half brother and sisters
- grandparents or
- uncles and aunts
- half uncle and aunts
- the crown as bona vacantia
issue
does not include step children or the bioligucal children of step children.
which of the following is a requirement under s9 wils act
the witnesses must sign the will or acknowledge their signature in the testators presence (s9 requires the witnesses to sign the will in the testators presence)
the witness must read the will before they sign it - no
the witnesses must sign the will in the presence of another - witnesses do not have to sign in each others presence
the witnesses must be present when the testator signs the will - s9 permits the testator to sign the will without the witnesses being present, provided they gon on to acknowledge that signatue in the presence of witnesses.
the witnesses must personally know the testator
administration getting the grant
if there is a valid will: grant of probate (there is probative value) remember!
if there is not a valid will - grant of administration (adminsitrators rather than executors).
if there is a valid will but no one able or willing to act as an executor, then the person entitled to be an adminstrator will apply for a grant of letters of administration with the will annexed.
ownership of an intestates deceased’s assets does not pass to administrators until the grant of administration has been made. executors on the other hand are the legal owners of the deceased’s estate from the moment of death - but need a grant of probate to evidence this fact.
type of grants
common form grants are issued by the pricipal registry of the family division or by one of its district registries. most grants are made in common form which indicates there is no dispute associated with the will
if there is a dispute the dispute will be dealt with by the chancery division of the high court which will decide the question and if appropriate make an order for the grant to be made again by the family court in solemn form.
gaining the grant
prs must file evidence showing that they have submitted an inheritance return to hm revenue and xustoms and paid any tax due. if it hasnt been paid the grant wont be issued.
they must also lodge a legal statement verified by a statement of truth with the probate registry confirming that :
- the deceased has in fact died tje daye of drath and the deceased domicile
- whether the deceased died testae or intestate
- in what manner or what grounds the prs is entitled to the grant
- that inheritance tax has been paid
- how much the estate is worth in gross and net.
DIFFERENT APPLICATIONS
grant of probate: whole original will must also be submitted. wont accept copy unless there is good sworn evidence that the original has been destroyed. there may sometimes be a need for further evidence.
if for a grant of adminsitration: the proposed adminstrator will have to deal with ‘clearing off’
- either that they are the first appropriate person to be adminstrator or if why the people in front of the are either unable or unwilling to take on the task
probate + caveats (stops them in their steps (caveATE (8 days)) after warning)).
most applications for probate run smoothly but be aware that any person who has a suspicious about thw will can enter a caveat - this raises a red flag with the probate regsitry. they cannot issue a grant until the caveat is either removed or it expires after 6 months (can be renewed)
- if the caveat is entered the executors will usually respond with a warning - which obliges the person who entered it to either within 8 days:
1) entering an appearance - setting out they have an interest which is contrary to the interest of the erson applying for a grant
2) if not can still ask for a summons for directions which in essence is a request to the court to consider whether the named executor is an appropriate person to act
application procedure for obtaining a grant
can only be done in two ways
1) personally by the person whom is entitled to the grant
2) via a probate practitioner.
- there are no time limits to making an application - the general rule wont issue a grant of probate or administration with the will annexed less than 7 days after the death or a grant of administration less than 14 days after death (no will).
documents to be lodged with the application:
- tax
if excepted estate firn iht205 rather than 1ht400 is used).
prs: person in charge of administering the estate
they are the only people allowed to deal with the assets f the estate while it is being wound up and distributed.
- executors; appointed under a will
administrators - who are appointed by the court.
-
citation
forces reluctant executor to decide whether or not to accpet. if the pr doesnt enter an appearance they ;ose the right to act as an executor.
rencouncing probate: must serve a written notice with the probate registry must do so as quickly as they can as they lose the right to renounce if they have taken any steps in starting to administer the estate
there is another way in which a named executor can avoid involvement - reserving a power to the executor involved - can only be used when there is more than 1 named executor
acting as an executor without authority
- son tort
- will be held personally liable for the assets they have intermeddled with including paying losses or any chargeable inheritance tac
types of administrators
- with a will
- without a will - full intestacy -
Rule 22(1) of the NCPR order: ALTHOUGH THERE IS A MAX OF 4 ADMINISTRATORS BUT THERE IS GENERALLY ONLY ONE. UNLESS THERE IS EITHER A MINORITY INTEREST OR A LIFE INTEREST IN WHCIH CASE THERE MUST BE TWO…
- surviving spouse / civil partner
- children of the deceased and the issue of any deceased child who died before the deceased
- father, mother
- brothers and sisters of the whole blood and the issue of any borhter or sister (nephews)
5half blood brother/sister/nephew - grandparents
- unclues and aunts full blood / issues
- half blood
bona vacantia.
administrator with a will
ncpr rule 20 - this provides that the grant should first to any named executor provided they are not prevented from acting as an executor or to the residuary legatee who is holding the estate on trust for another, if neither then to a residuary legatee.