wills + admin Flashcards

1
Q

three main sets of rules for validty of wills

A

formalities (s9), capacity and intention

ALL of these elements must be present. (tripod theory).

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2
Q

testamentary capacity:

A

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

    1. did the testator understand the nature of the will and its effects?
      1. did the testator understand the extent of the property they were disposing off by will
      2. did the testator understand the claims to which they ought to give effect
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3
Q

intestacy order of entitlement

A

1 if there is a surviving spouse but no issue; they will recieve the whole estate.

  1. if there is a child or children but noi surviving spouse: the children will inherit under statutory trusts
  2. 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

  1. deceased’s parents n equal shares if not
  2. full brothers and sisters if none then to
  3. the deceaseds half brother and sisters
  4. grandparents or
  5. uncles and aunts
    - half uncle and aunts
    - the crown as bona vacantia
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4
Q

issue

A

does not include step children or the bioligucal children of step children.

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5
Q

which of the following is a requirement under s9 wils act

A

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

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6
Q

administration getting the grant

A

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.

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7
Q

type of grants

A

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.

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8
Q

gaining the grant

A

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.
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9
Q

DIFFERENT APPLICATIONS

A

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

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10
Q

probate + caveats (stops them in their steps (caveATE (8 days)) after warning)).

A

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

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11
Q

application procedure for obtaining a grant

A

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:

  1. tax
    if excepted estate firn iht205 rather than 1ht400 is used).
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12
Q

prs: person in charge of administering the estate

A

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.
    -
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13
Q

citation

A

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

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14
Q

acting as an executor without authority

A
  • son tort
  • will be held personally liable for the assets they have intermeddled with including paying losses or any chargeable inheritance tac
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15
Q

types of administrators

A
  1. with a will
  2. 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…

  1. surviving spouse / civil partner
  2. children of the deceased and the issue of any deceased child who died before the deceased
  3. father, mother
  4. brothers and sisters of the whole blood and the issue of any borhter or sister (nephews)
    5half blood brother/sister/nephew
  5. grandparents
  6. unclues and aunts full blood / issues
    - half blood
    bona vacantia.
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16
Q

administrator with a will

A

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.

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17
Q

paying the inheritance tax before getting the grant of p/a

A
  1. the direct payment scheme
    - when the deceased has left money in a bank or building society account there is an agreed procedure by which the bak holding the money will electronically transfer to hmrc - must be a member of the british bankers and building societies association in order to participate.

if not available

  1. borrow from a beneficiary
    - one or more of the b’s may have obtained property passing outside the estate e.g. life insurance policy it may be in their interests to the etstae in order to obtain the grant of probate.
  2. borrowing from a bank or building society
    - if all else fails then it may be possible for the PRS to borrow the inheritance tax payment from a bank or building society although this is a last resort. if a loan is sought the PRs will write to the bank concerned setting out a summary of all the assets in the estate the net value the maount of iht liability that needs to be paid and the amount of any probate fees and will ask for a loan - they will usually request that the prs given an undertaking to pay them back first from the estate made available after the grant.
18
Q

net probate estate

A

house passing by survivorshup does not form part of it.

19
Q

family provisions

A
  1. standing
    • current spouse/ civil partner
    • a former spouse / civil partner provided that they have bnot entered into a new marriage or cp.
    • a cohabited of the deceased as a person waho was living in the same household as the deceased for a period of 2 years before the death.
    • a child of the deceased
    • any person who was treated as a child of the maily
      who was being maintaned either wholly or partly by the deceased immediately before the death.
  2. timing (6 months from grant of probate / admin)
  3. what has the applicant recieved
  4. the relevant standard of financial provision - e.g. how much do they need for the maintenance
  5. was the financial provision made by the deceased reasoable
  6. if not reasonable - court can use powers under s2 of the act to redistribute the estate.
20
Q

trusts

A

bulktangible property such as bottled wine must be segregated so that the subject matter of the trust can be said to be certain

21
Q

challenging the validity of a will - undue influence

A

where a testator has capacity and the will has been duly executed, there is a presumption of knowledge an approval

any person who wishes to challenge the will must prove undue influence.

there is no presumption of validity merely because a will has been duly executed.

a presumption of undue influence arises in the exercise of a life time gift where the recipient of the gift was in a position of trust and confidence and the gift requires explanation because for exaple it is large

never a presumption of undue influence in the case of a will in comparision to life time gifts.

22
Q

suspicious circumstances

A

where there are suspicious circumstances e.g. where the will benefits the person who prepares it, the presumption that the testattor knew and approved its contents does not apply.

in this case the burden of proof will be on the beneficiary to show that the testator intended on making the gift.

23
Q

purpose trusts

A

political means - unlikley to be exclusively charitable.

23
Q
A
24
Q

s33

A

only applies if the gift was to issue who predeceased - doesnt apply for example if the wife gave a gift to her brother (wouldnt then pass to the brothers isssue).

24
Q
A
25
Q

references to people in a will

A

are taken to mean the person who fulfils the description at the date of the will.

26
Q

what can objects of a discretionary trust request to see?

A

the trust deed
the accounts

list of the trusts investments

27
Q

it is possible for one executor to act even where there is an infant beneficiary.

A

a

28
Q

appointment of new trustee

A

where a trustee is to be replaced and there is no express provision in the trust instruemnt, the appointment will be a statutory one under s36(1) the appointment must be in writing preferably a deed executed by the continuing trustees of the trust.

29
Q

capital gains:

A

gain in value between death and disposal

transfer to a beneficiary is deemed to be a disposal by the prs at the same value as at the date of death and so there is no gain.

30
Q

trustees - investment advice

A

whilst trustees should generally obtain and consider proper advice before making investments, they need not obtain such advice if they consider it reasonably uneccessary or inappropriate. e.g. if they are a proeprty specialist.

31
Q

delegating investment powers

A

trustees can delegate their investment powers to a third party adviser

will not be vicariously liable for the decisions that the adviser takes however they may still be liable if they have breached their own primary duties.

for instance, the adviser must have been selected with reasonable care and skill and the trustees are under a duty to review the actions of the adviser from time to time.

delegation can be for a period longer than 12 months - only relevant to cases of individual delgating.

32
Q

protection against creditors

A

must wait for a period of 2 months from advertsing to distribute.

advertisement does not afford protection in respect of a missing beneficiary.

33
Q

statutory order for payment of debts s34(3) of aea 1925

A

will apply meaning that the executor must settle any unsecured debts if possible out of the residuary estate before using property given to specific legatees.

34
Q

income tax

A

prs must pay an income tax on estate income at basic rate 20%. the beneficiary recievs credit for the tax already paid by the executor - if higher rate taxpayer will pay the difference between the basic rate paid by executor and the amount for which the beneficiary is liable (e.g 40% and 20%).

35
Q

appropriation

A

s41 gives prs power to appropriate any assets in the estate in or towards the satisfaction of any legacy. however, as an executor the appropriation woudl give rise to a conflict of interest.

requires the consent of the beneficiary to whom the pr is appropriating.

36
Q

trustee liability

A

trustees are portentially both liable - when more than one trustee is liable for breach of trust, liability will be joint and several.

37
Q

lump sum awards under family provisions

A

the effect of a lump sum order would be to divert assets from non exempt beneficiary to another so the iht would be unaffected.

38
Q

disclaimed

A

amounts to rejection - the legacy then passes as though the disclaimer predeceased the testattor

39
Q

post death variations

A

a variation is read back to the mans death is the best option for iht purposes.

only the original beneficiary needs to sign the variation.

  • should be made in writing
  • within 2 years from the womans death and it myst be signed by the person who is disclaiming their right in effect.