Succession Flashcards Preview

Scots Family Law > Succession > Flashcards

Flashcards in Succession Deck (90)
Loading flashcards...
1

What does s.23 of the Registration of Births, Marriages and Deaths (S) A 1965 state?

That all deaths must be registered

2

What does s.50 of the National Assistance Act 1950 require?

- Local Authorities have a statutory duty to bury deceased persons after their death if no relevant actions have been taken by family of deceased.

3

City of Edinburgh Council v Melvyn Marcel 2017 CSOH 15

S.50 duty override wishes of family member
- Defender wished to build a mausoleum on his property, he held deceased parents on property whilst waiting for pemission
- Council sought decree to bury bodies in accordance with s.50 of the National Assistance Act 1948 duty of burial
- Lord Mulholland granted decree of burial to Court as conditions set out in s.50 were established

4

Explain what is meant by survivorship

- In order to inherit, someone must have “survived” the deceased
- Length of time by which they survive them is not significant

5

What is a common calamity?

- Where a single tragedy may kill more than one person
- Unclear who/if someone survived the other

6

What rules are laid out by s.31(1)(a),(b) and (2) of the Succession(S) Act 1964?

- presumptions as to who died first where people died simultaneously, or - unclear who died first

7

How does s.9 of the Succession (S) Act 2016 simplify the 1964 rules on common calamity?

States that, except in limited circumstances (s. 10) the law deems that all those who passed away died simultaneously

8

What rights of inheritance to children have to unmarried parents?

s.1 Law Reform (Parent and Child) (S) Act 1986
Have the same rights as children born to married parents

9

Who do adopted children have inheritance rights against?

Their adoptive parents NOT their natural parents as per the Adoption and Children (S) Act 2007, s.40

10

Can posthumous children inherit from deceased parents?

YES
- Although partial exception to rule that you need to be alive to inherit

11

Do step-children have succession rights in relation to their step-parents?

NO
- In the absence of a will which states otherwise, step-children have no succession rights

12

Do cohabitants have right to inheritance?

YES
- Family law (S) Act 2006, s.29

13

What is the concept of the "unworthy heir"?

Idea that a person cannot inherit from someone they have killed

14

The Succession (S) Act 2016 s.12 provides that a killer cannot benefit from estate of a deceased. What else did the 2016 Act introduce to protect party who obtained property from killer?

Protection for party who obtained title to property in good faith whose title would have been affected by killer's forfeiture.

15

Are married and civil partners treated differently in respect of succession?

NO
- married and civil partners treated identically as per succession (s) act 1964 s.2,8 and 9.

16

If a married couple separate (not legally) do succession rights remain?

YES
- Seperation not the same as divorce

17

What is meant when someone dies intestate?

That the deceased died without writing a will

18

What Act sets out rules for division of estate in an intestate death?

The Succession (S) Act 1964

19

What is meant when a person dies testate?

The person wrote a will (testament) before their death

20

How is the estate divided in testate succession?

By following division laid out in the will

21

Who cannot be disinherited?

The Spouse/CP and issue (children, grandchildren etc.

22

What are legal rights?

They entitle those eligible for such rights to a portion of the moveable estate.

23

What is the spouse entitled to under legal rights?

If there are issue (Children)
- Spouse gets 1/3 of moveable estate
If no issue
- Spouse entitled to 1/2 moveable estate.

24

EXAMPLE
- Manny and his wife have been married and living together for 15 years
- They do not talk and Manny has everything in his will to his nephew and niece
- Manny dies, what rights, if any, does the surviving spouse have?

She would be entitled to 1/2 of his moveable estate property as there is not children to the marriage and legal rights still have effect when a will is present

25

What legal rights do children have in succession?

Unbeatable legal right to deceased's moveable estate
- this is known as legitim
- legitim fund is 1/2 if no surviving spouse to all children
- legitim fund 1/3 if there is surviving spouse to all children

26

If there was three children entitled to legal rights, with a surviving spouse how much would they be entitled to each out of a moveable estate of £120,000

Total available to the children would be £40,000
This would be divided equally so that the 3 children would receive around £13,333 each

27

Do children and spouses have to claim their legal rights?

NO
- Some may reject out of selflessness
- of self interest on part of person with legal rights

28

Why might a person choose not to accept legal rights when shunned from the will?

- Respect of testators intentions
- Mainly the case where will leaves everything to others with legal rights and they wish not to interfere with transfer

29

Can a person exercise rights from will and legal rights?

NO
- approbate/reprobate rule - can only exercise either rights from will or legal rights as per s.13 of the 1964 Act

30

What is the difference between approbate and reprobate?

Approbate - Accept will renounce legal rights
Reprobate - Renounce will, accept legal rights