Wills and administration (week 1-5) Flashcards
what are the 6 main types of property which will NOT pass under the succession estate?
- Donationes mortis causa (DMC): gift made in contemplation of death
- Discretionary pension scheme benefits
- Insurance policies written in trust
- Statutory nominations
- Property held as beneficial joint tenants
- Some other beneficial interests under trusts
if deceased has simple life insurance policy - do the proceeds of the policy pass in the succession estate?
yes they do
tenant in common property or joint tenants = which one passes via survivorship?
joint tenants = survivorship
how long does spouse need to survive to inherit under intestacy?
at least 28 days
what is an ‘issue’ for the rules of intestacy?
child or remote linear
if the interstate leaves a spouse and an issue - what are the entitlements that the spouse gets?
- personal chattels absolutely
- statutory legacy of £322,000 free of tax and costs plus interest from date of death o the date on which payment is made
other half of the residue (if any) absolutely
what are the intestacy rules - priority if no spouse or issue?
- Parents
- Siblings of whole blood (share both parents) on the statutory trusts
- Siblings of half blood (share one parent) on the statutory trusts
- Grandparents
- Uncles and aunts of whole blood (whole blood siblings of a parent) on the statutory trusts
- Uncles and aunts of half blood (half blood siblings f a parent) on the statutory trusts
- The crown as bona vacantia
is there an obligation on PRs in intestacy to distribute particular assets to particular individuals?
no - up to PRs to distribute assets as they see fit, in fulfilment of individual’s entitlement
what are the 3 things excluded in the definition of ‘personal chattels’?
- money or securities for money
- property used by the interstate at their death solely or mainly for business purposes
- property held at the death of the interstate solely as an investment
do surviving tenants in common need a 2nd trustee?
yes they do
if there is a restriction on the land registry official copies - is the property owned as JT or tenants in common?
tenants in common
what are the legal requirements of a will? (there are 3)
testamentary capacity, knowledge and approval and formal requirements/s9 of wills act 1937
what is the test for testamentary capacity? (banks v goodfellow) (there are 4 factors)
- 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
- have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will
what are the exceptions when a testator doesn’t need to have testamentary capacity AT THE TIME the will is executed?
- they had testamentary capacity AT THE TIME they gave instructions
- the will was prepared in accordance with those instructions
- testator understood they were signing a will for which they had previously given instructions
what is the golden rule in reference to testamentary capacity?
when taking instructions from someone who is elderly or seriously ill, a medical practitioner should be instructed to make an assessment of the testators capacity.
what are the 3 situations when there is no presumption of knowledge and approval?
- testator is blind or illiterate
- will was signed by someone on behalf of testator
- there are suspicious circumstances
who has the burden of proof for undue influence or duress of a will?
the person who asserts must prove and court requires proof
if it is proved then the will is not valid as it doesnt reflect the true intentions of the testator
what happens if evidence is provided that there was grounds for lack of capacity?
if evidence is provided, then the presumption of capacity is rebutted and the burden of proof reverts to the propounder of the will to demonstrate the testator satisfied the banks v good fellow test.
what is an attestation clause?
clause that explains circumstances under which the will was executed
what must happen for a will to comply with section 9 of the wills act 1837?
It must be in writing and signed by the testator (or by someone else on their behalf)
what is a cy-près doctrine?
if a gift in a will is given to a charity that ceases to exist then it can go to another charity of the same general charitable purpose
Is a will valid without a revocation clause?
Yes it is valid however it should be included as a matter of good drafting to avoid uncertainty
what is the minimum number of executives required?
minimum of one executor is required but often better to appoint at least 2
What happens if a testator outlines a specific gift for example, the gift of my blue Hyundai. However at the time of death the testator no longer owns my blue Hyundai?
This gift would fail to take effect and the beneficiary would receive nothing because that specific gift is no longer in the testators possession at the time of death