Wills & Administration of Estates Flashcards
IPFDA 1975 Claim
A claim against your estate, on the basis of not being properly financially provided for
- We cannot say at this stage whether a claim would be successful
- It would depend on his/her financial situation at the time
- Cannot stop the person making a claim
- Advise on the consequences of excluding one potential beneficiary - considerations when making lifetime gifts/drawing up a will
Settlement option to avoid litigation (IPFDA claim)
If an individual has a claim against the client’s estate and the client wants to avoid litigation:
- advise they make a settlement offer = deed of variation to redirect the inheritance
Personal chattels
Household items, car (if you own one), jewellery, furniture
The Nil Rate Band (for IHT purposes)
£325,000 which is tax free. Anything in your estate above that (the balance), is taxed at 40%
Undue Influence
Undue influence occurs where a testator is coerced into making a will which is against their judgment and contrary to their true intentions. It is coercion which goes beyond persuasion.
Advising a client on a claim:
- the burden of proving it lies with the person making the allegation and the court requires evidence
- the question the court considers is whether the testator acted as a “free agent” when executing the will, not whether the will is fair
The issue:
- if a will is made under undue influence, then it will not be valid
The formal requirements for a will to be valid (s9 Wills 1837)
s9 WA 1837 outlines the requirements for a will to be validly executed. It must be in writing and signed by the testator (or someone under their direction), with the testator intending their signature to give effect to the will, and witnesses by two people who sign in the testator’s presence.
Attestation clause
An attestation clause describes the circumstances under which the will was executed
- there is not a legal requirement to have one for the will to be valid
- however, a properly drafted one raises a presumption that the will is executed in accordance with requirements of s9 WA 1837
Testamentary capacity
A person’s legal and mental ability to make or alter a valid will, meaning they understand the nature of the act, understand the extent of the property they are disposing of and appreciate any moral claims against them.
This means they are mentally capable of making a will
Intermeddling
Intermeddling is when a person takes steps indicating that they have accepted their appointment and are fulfilling the duty to administer the estate
For example, obtaining, receiving, or holding the deceased’s assets, forgiving any debt or liability, selling assets, disposing of personal property
- Acts of common humanity, such as arranging the funeral or reviewing the deceased’s home and contents insurance police does not count as intermeddling
DMC
This is a gift made by someone in contemplation of their imminent death and is made conditional on their death. As this is a deathbed gift, it does not need to follow the usual formalities. The gift becomes effective on death
Saunders v Vautier rule
The right of a beneficiary over 18 of sole mind with a vested interest, to compel the trustee to transfer legal title to them, bringing the trust to an end
