Wills: Assents and Rights or Beneficiaries Flashcards
From when does an assent apply?
- Assent relates back to date of death so B is entitled to rents and other income generated in that time
Requirements for assents
- In writing
- Signed by PR
- Name the person in whose favour it is given
Does a PR have to assent if they continue to hold property as benficiary, trustee or for intestacy?
Yes
- needed even if PR is beneficiary
- and when PR will continue to hold property in different capacity (trustee etc.)
Who must complete first registration for assent of unregistered land? Is evidence needed?
Either:
- PR can apply , producing grant when making application; or
- beneficiary will then apply later (submitting certified copy of grant)
What should a purchaser of land do if buying from PR or beneficiary?
PR
- When buying land from PR purchaser should insist on statement in conveyance that no previous assent has been made
- This protects them unless they has notice to contrary
Beneficiary
- If buying from beneficiary an assent in their favour from PR is sufficient protection
What legal rights does a beneficiary have in an asset left to them before administration is compleate?
Beneficiaries have chose in action
- Means the right to have deceased’s estate properly administered
- NOT Legal or equitable interest in assets until administration is complete
What remedies do beneficiaries have when difficulties arise in administration of the estate?
- Personal Action against PR
- may be absolved under will, agreement with beneficiaries
- relief from court if acted honestly, reasonably and ought fiarly to be excused - Tracing
- estate property or its proceeds
- from PR or other recipient
- right lost against bona fide purchaser for value - Personal Action agsint person who wrongly recieved asset
Does a PR have protection against a personal action against them from a beneficiary?
- PR may be absolved under will
- relief from court if they acted honestly, reasonably and ought to fairly be excused’
- May be absolved by agreement with beneficiaries
What are requirements for Claims Against Estates under Inheritance Act 1975?
- Generally deceased must have domiciled in UK (unless deceased left property and family members or dependants in England and Wales)
- must be made in 6 months (or later with leave of court)
- must be one of permitted class to bring action
Who can bring claims under Inheritance Act 1975?
- surviving spouse
- former spouse (if not remarried and no clean break divorce)
- child (inc. stepchild)
- Person being maintained by deceased (only if deceased was making substantial contributions towards reasonable needs)
- Person living with deceased as spouse for whole of 2 year period immediately before death
What constitutes reasonable financial provision for a surviving spouse?
- Standard is financial provision as would be reasonable in all the circumstances, whether or not required for maintenance
- Court should consider what would be awarded in a divorce
What constitutes reasonable financial provision for a former spouse?
Court has discretion to apply surviving spouse standard if
- Death occurs within 12 months of decree absolute; and
- No final order has been made in those divorce proceedings
What constitutes reasonable financial provision for non-spouse applicants?
- Standard is for provision required for their maintenance such that they can live decently and comfortably according to their situation
- Test is objective
- But evidence of deceased’s reason for not providing in their will is admissible (in will itself or accompanying document)
How can a court deal with an estate if they approves an application for financial provision. What powers do they have?
If court approves an application estate devolves according to court order, not will or intestacy
Court have very wide discretion to make following orders
- Transfer of property
- Payment of lump sum
- Payment of income
- Settlement of property on trust
- order on property disposed of before death if this disposal was intended to avoid the provisions of 1975 act
