Wills and Trusts Flashcards
Who inherits under intestacy if there is a spouse or CP?
- Spouse or Civil Partner get 322k and half of the rest.
- The other half of the rest go to issue on statutory trusts.
Who inherits under intestacy if there is no spouse?
- Issue on statutory trusts, but if none:
- Parents, but if none:
- Whole siblings, but if none:
- Half siblings, but if none:
- Grandparents.
What does statutory trusts mean?
The person inheriting is a beneficiary.
Interest contingent on turning 18 or marrying.
What happens if a child dies before the intestate and they have children of their own?
Their children take their beneficiary interest equally.
Can a beneficiary under a will be the executor?
Yes.
Can a beneficiary under a will be the witness? Can their spouse?
Neither can be witnesses and the gift will be invalid. However, the will is still valid.
Under what circumstances is undue influence presumed under a will?
None. It never is.
Does a life interest in a trust pass under a will?
No. It passes under the trust.
When is there a presumption of knowledge and approval of a will?
When the circumstances under which the will was drafted are not sus.
Do the witnesses of a will need to sign in each other’s presence?
No.
Does there need to be a clear line of sight between witnesses and the person signing their will?
Yes.
Does a declaration of trust need to be made in writing?
Only if is a trust over land.
What is the rule in Strong v Bird?
If I had intention to give you an immediate gift which did not change before my death and you are the executor of my will, equity will complete the transfer even if I have not completed the formalities.
What is the every effort test?
Equity will complete a gift if I have done everything required of me and the only outstanding actions were those of someone else.
When would the Probate Service require an affidavit of due execution?
When the attestation clause in the will has not been properly executed.
Must there be witnesses for the destruction of a will for the purposes of revocation?
No.
Does divorce revoke a will?
No.
What are the three methods of revoking a will?
Destroying it.
Making a new one.
Marrying.
If I inherit a mortgaged house, do I inherit the burden of the mortgage?
Yes.
Are initials sufficient for the alteration of a clause of a will?
Yes.
Does a ‘husband’ under a will continue to be a beneficiary under a will after divorce?
No. They lose their identity as ‘husband’.
If you say ‘my diamond necklace’ and you have two, does that classify as uncertainty of subject matter in a will?
Yes.
When does a gift lapse and when does it adeem?
It lapses (fails) if the beneficiary dies before the testator.
It adeems if the subject matter ceases to be (eg shares are sold).
Is partial intestacy possible?
Yes if the will does not provide for where the residue should go.
When will a gift to someone not pass to their children if they die before the testator?
If that person is anyone other than the testator’s child.
Note: the gift passing to children of the dead is meant to protect vulnerable grandchildren who have been orphaned.
What happens if you kill someone whose will you were in?
You forfeit your gift in the will.
What happens if you kill a fellow joint tenant?
Their share does not pass by survivorship. You forfeit that right.
Do you take the burden of IHT under a will?
Not if the will is silent.
When will a court use extrinsic evidence to interpret a will?
The clause is meaningless.
The clause is ambiguous on its face.
The clause is ambiguos in light of the circumstances.
Will a court rectify a will if it satisfied that it is expressed with a clerical error?
Yes.
Does the rule against inalienability always apply?
Not to charitable trusts.
Does the personal nexus test apply to charitable trusts for the sake of combatting poverty?
No.
Can a charitable trust be political?
No.
What makes a charitable trust?
It is for the public benefit.
What are the two types of non-charitable purpose trusts that are also valid?
Maintenance of animals and graves.
Purpose trusts with a beneficiary that can enforce it (Re Denley).
Both must satisfy the rule against perpetuity.
What is the problem with ‘I give them this with the hope that they will do that’?
Insufficient certainty of intention.
What is the time period for the rule against inalienability?
21 years. The non charitable purpose trust must explicitly say that the trust must be disposed of within 21 years ‘or according to statutory limits’.
When can you give evidence to rebut a presumed resulting trust after the trust was created?
When it is evidence against you.
If you were allowed to create evidence in favour of you after the fact, you would be able to alter your intention at the time the trust was created.
When does the presumption of a resulting trust arise?
Give consideration for free.
When does the presumption of advancement arise?
Money or purchase price or home to children for free.
Note: mostly fathers.
What is the difference between common intention constructive trusts and proprietary estoppel?
For common intention constructive trusts, the person needs to have contributed to purchase price or mortgage payments.
For proprietary estoppel, the person only needs to have relied on assurance that they owned an interest and acted in their detriment.
What proves common intention for a constructive trust?
Either express common intention or payment or purchase price or mortgage.
Can payments to purchase price be indirect?
Yes. If you pay bills so partner can pay mortgage.
Is there a presumption of a resulting trust possible due to the voluntary transfer of land for no consideration?
No.
Do mortgage payments lead to constructive or resulting trusts?
Constructive trusts.
Do the rules of a pre-deceasing child apply if they died hours or days before the testator?
Yes.
Who needs to consent for a trust to be brought to an end?
All beneficiaries who could be entitled to interest in the trust if they are 18 and of sound mind.
What makes an alteration after a will valid?
It needs to be executed and witnessed like a will but initials will suffice.
What are the IHT bands?
0 up to 325k.
40% anything above 325k.
40% above 500k for property.
What is exempt from IHT? What is the condition for exemption?
Property going to spouses.
Charity.
100% relief for shares of UNLISTED company.
50% relief for shares if you owned more than 50% or of any equipment or property used by a partnership.
What is the annual exemption for transfers for the purposes of IHT?
3k and can be carried over 1 year for a total of 6k.
What is the tapered band for PETs?
Less than 3 years: 40%
3 - 4 years: 32%.
4 - 5 years: 24%
5 - 6 years: 16%
6 - 7 years: 8%
How is IHT distributed between assets within the estate?
Distributed equally between assets across the estate.
How much goes to your estate if you have a 50k account jointly held with someone?
25k.
Note: be careful with this in IHT questions.
What is the policy for unused nil rates by spouses?
If someone dies and uses 0% of their nil rate, the estate of their spouse can apply a 100% increase to the nil rate that applies at their death.
When are installments available for IHT?
Property
All CONTROLLING shares.
Which IHT do executors need to pay to obtain grant?
Any IHT which is not eligible for installment payments.
Can mortgage payments after purchase result in a resulting trust?
No. Only constructive.
Is equity supposed to have been satisfied or established?
Established.
How much will a court award under a constructive trust?
What the parties intended and, if that can’t be ascertained, the share which would be fair having regard to course of dealing.
How much will a court award under a resulting trust?
You get what you paid for.
Can you use your nil rate band on a lifetime chargeable transfer to a trust?
Yes.
When are two administrators required?
When one of the beneficiaries is a minor or only has a life interest.
When does a will need to have more than one executor?
Never.
Which assets do not pass through a PRs hands?
Insurance policy written in trust or assigned for others.
Is IHT paid before or after obtaining grant of rep?
Any IHT that is due and payable before grant must be paid before grant of probate can be obtained.
