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53 Cards in this Set
- Front
- Back
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When does intestate succession apply?
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When the deceased has left no instructions for the distribution of their estate
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What is total intestacy?
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When there is no will
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What is partial intestacy?
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When, for whatever reason, the will fails to disposeof all of the deceased’s assets
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Artificial intestacy?
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When a particular provision of a will fails becauseof lack of certainty.
If thewill makes no other provision for disposal of that property then it would fallto be disposed of under the rules of intestate succession |
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Intentional intestacy?
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When a beneficiary rejects what is provided for in the will and claim under a ruleof law.
If the will makes no other provision for thedisposal of such property then it will fall into intestacy on purpose |
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How is an intestate estate divided?
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1) Spouses prior rights
2) Legitim 3) Division of the Free Estate |
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What are a spouses prior rights?
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1) Relevant interest in the dwelling house (up to £473,000)
2) Furniture and Plenishings (up to £29,000) 3) Financial provision |
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What does "dwelling house" exclude?
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Tenanted properties
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What if there is more than one house that the spouse was ordinarily resident in?
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They have 6 months from the date of death to chose which one they want
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What happens if the dwelling house is worth more/less than £473,000?
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More: Can either get £473,000 in cash from the estate, or pay the difference and keep the house
Less: nothing. Does not get the surplus in cash |
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What is the "relevant interest"?
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The net value of the property minus any standard securities
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What does furniture and plenishings exclude?
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1) Anything for business purposes
2) Money 3) Any securities for money 4) Heirlooms |
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Where can the furniture and plenishings come from?
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A residence owned by the deceased, BUT can only be taken from one property (cannot mix and match)
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Are F&P owned in common?
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Only if the deceased and spouse lived together at time of death. If so, can make claim for one half share (up to £29,000)
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How much is the financial provision?
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With Children: £50,000
Without: £89,000 |
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What happens if the estate is exhausted from the first two prior rights?
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Then the spouses claim is satisfied by taking the whole estate
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What happens if there is a legacy to the spouse?
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The amount is deducted from the financial provision
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What is the maximum amount you can claim under prior rights?
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£591,000
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What part of the estate do legal rights come from and how do they work in intestacy?
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Moveable
No difference |
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How is the free estate divided?
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Divided amongst those in the class nearest the deceased (usually children) and the issues of those who pre-deceased but would have received a share
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What are the classes for Free Estate succession?
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1) Descendants (children,grandchildren etc)
2) Collaterals (brothers, sisters, etc) 3) Spouse/Civil Partner 4) Ancestors |
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Is representation allowed in the classes?
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Yes, all except for spouses and parents
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What is testate succession?
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When a will has been left
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What is a codicil?
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When a testator has made amendments to their will, a codicil is added
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Are informal writings valid?
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Yes, as long as the will includes a clause directing theexecutors to give effect to them
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Whatfactors affect the essential validity of a will?
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(1) Lack of capacity
(2) Where the testator istaken advantage of as a result of age or other infirmity |
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What is the age of full testamentary capacity (post 25th September 1991)?
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12
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What if the testator had no mental capacity when the will was made?
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Will is invalid
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What if the person is eccentric?
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Doesn't matter. Will is still valid
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What are the 3 factors that must be present for facility and circumvention?
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1) Existenceof the “facility” (taken advantage of due to weak will)
2) Thecircumvention-getting around or persuading a testator 3) “lesion”i.e. Harm to the testator’s interest |
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What are the circumstances where undue influence arises?
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1) Existence of a relationship which creates a dominant or ascendant influence
2) Confidence and trust arose from thatrelation 3) A material and gratuitous benefit wasgiven to the prejudice of the granter 4) The granter entered into thetransaction without the benefit of independent advice |
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Hornev Whyte 2005 CSOH 115
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Acodicil to a will was reduced on the grounds of facility and circumvention andundue influence
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What if the testator was intoxicated when the will was made?
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Valid if to under a lesser alcoholic influence, invalid if fully drunk
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What are the provisions for formal validity?
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1) authentication
2) establishingthe identity of the parties 3) protection 4) importanceof the deed 5) certainty 6) Writingmakes it possible to register the deed |
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What is a holograph will?
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Subscribed entirely in testators handwriting
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How is a holograph will proved?
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by the affidavits of two witnesses who knew the grantershandwriting and could confirm that it was the granters
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What is an "adopted as holograph" will?
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Document not in the testators handwriting (typed etc) but adopted as though it were. Testator must sign at the bottom "adopted as holograph"
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Are both a signature and witness required for a document to be valid?
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No, just signiture
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What happens if an alteration is made to a will?
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The granter must subscribe (sign) AFTER. Anything after the signature is invalid. Must not sign in margin
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Can you make a will irrevocable? |
Generally, no. Two Exceptions; 1) "Contractual" Mutual wills 2) "Onerous Contract" Wills |
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What is a mutual will? |
When two or more people dispose of there estates via a single will. Usually left to each other if failing a third party. If there is a contactual element, it's irrevocable |
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How do you know if there's a contractual element to a will? |
Reciprocal provisions, expressly or implied, imply a contractual element |
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What is an onerous contract will? |
When a testator and a beneficiary have made a contract via the will |
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How can a will be revoked? |
Expressly, implied, or through alteration |
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What is express revocation? |
“And I revoke all prior testamentary writingshowever informal they may be” at the end of a will. |
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What is implied revocation? |
If there is a contradicting statement in a new will. |
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What is the difference between partial and complete revocation? |
Partial: Only the contradicting statement is revoked Complete: Previous will utterly revoked |
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What does Section 5(b) of the Requirements of Writing Act require of an alteration |
That it be signed and witnessed |
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What happens if an alteration/signature has been scored out? |
Providing it can be proved that it was by the testator/on their orders, scored out section revoked |
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What if there are alterations/additions in the margins or between the lines? |
Invalid unless accompanied by the testators signature |
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What happens if a will is destroyed? |
If done with the intention to revoke (with full capacity) then revoked By accident or while drunk etc, will still stands |
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What if the testator kept the will, and it cannot be found after death? |
Then assume it was destroyed with the intention to revoke |
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What is the rule of “conditiosi testator sine liberis decesserit” (or "Conditio" for short) |
The automatic revocation of a will on the subsequent birth of a child for whom there are no provisions for in that will |
