W&A Flashcards
(85 cards)
1
Q
What are the requirements of capacity to make a will?
A
- capacity
- knowledge and approval
- lack of duress and undue influence
2
Q
What are the formal requirements of a valid will?
A
As per Sec 9
- made in writing and signed by the testator or by some other person in his presence and by his direction
- the testator intended his signature to give effect to the will
- signature is made and acknowledged by the testator in the presence of 2 or more witnesses (present at the same time)
- each witness either:
a. attests and signs the will
b. acknowledges his signature in the presence of the testator
3
Q
What is an attestation clause?
A
An attestation clause records the compliance of sec 9 where the testator and at least 2 witnesses acknowledge the signatures on the will
4
Q
Which courts have jurisdiction to grant representation?
A
if non contentious: Principal Registry in London or local District Probate Registry
If contentious: Chancery Division of High Court
County Court (if estate below 350K)
5
Q
Which legacy adeems?
A
A specific legacy
6
Q
What happens if the subject of a general legacy is not in an estate?
A
the beneficiary is entitled to require the executor to purchase it if the estate has sufficient funds
7
Q
When does a gift lapse?
A
When the beneficiary dies before the testator
8
Q
How long is a caveat valid?
A
6 months
9
Q
What is a Benjamin order?
A
An order made by the court for the distribution of assets on death when it is uncertain whether or not a beneficiary is alive
(ONLY applies in case of KNOWN beneficiaries and NOT UNKNOWN beneficiaries)
10
Q
What are the exceptions to the PRs general power to invest in land?
A
PRs can buy land for occupation by beneficiary or other reason but CANNOT
- buy land abroad
- purchase of interest in land with someone else (even if beneficiary)
11
Q
What does seeking a citation to take probate mean?
A
A citation to take probate is used when an executor has lost their right to renounce by intermeddling in the estate but has not applied for a grant and does not intend to do so.
Once cited by the Probate Registry, the executor must proceed with an application. If they do not, the citor can apply for a court order allowing the executor to be passed over
citation to accept or refuse a grant cannot be used when the named executor has intermeddled in the estate. A citation to accept or refuse a grant is used to clear off a person with a prior right to a grant who has not applied, and shows no intention of applying, for a grant.
12
Q
Is a live in partner considered spouse for the purposes of intestacy?
A
No
13
Q
When does a chain of representation not apply?
A
When the estate is under administration (chain of rep applies under probate)
Under admin, a grant de bonis non is needed
14
Q
How can a PR fully protect themselves from the claims of unknown beneficiaries and creditors?
A
placing appropriate advertisements in the London Gazette and waiting at least two months from the date of the advertisements before distributing the estate
(ONLY PR gets protection, NOT the beneficiaries)
15
Q
Against whom can a beneficiary bring personal claim for misappropriation of property?
A
Against PR and persons who received the property (NOT bona fide purchaser)
16
Q
What is the time limit for bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
A
6 months of the issue of the grant of representation to PRS
(Court can give leave for delay)
17
Q
When is an alteration of a will valid?
A
BEFORE the execution of the will
18
Q
What is excepted estate?
A
- its value is below the current Inheritance Tax threshold (325k)
- the estate is worth £650,000 or less and any unused threshold is being transferred from a spouse or civil partner who died first
- the deceased left everything to a spouse or civil partner living in the UK or to a qualifying charity and the estate is worth less than £3 million (1 million before Jan 2022)
4.the deceased was living permanently outside the UK (a ‘foreign domiciliary’) when they died and the value of their UK assets is under £150,000
(the person needs to be domiciled in the UK otherwise it is NOT excepted estate)
19
Q
What is the standard for reasonable financial provision for a spouse/civil partner under the Inheritance (Provision for Family and Dependants) Act 1975?
A
reasonable in ALL circumstances, whether or not required for maintenance
20
Q
When is a caveat issued?
A
To prevent an issue of a grant of representation (done by beneficiary if executor lacks mental capacity or invalid will)
(lodged with Probate Registry)
21
Q
What are the different types of citations?
A
2 types:
- citation to take probate: when executor has intermeddled with estate and thus lost right of renouncing but has not applied for grant or intend to do so
- citation to accept or refuse grant: to clear off a person with prior right to grant who has not applied and shows no intention of applying for a grant
22
Q
Can a PR appropriate alternative assets in their own favour to satisfy a pecuniary legacy?
A
No (but can for others)
The executors have a general power of appropriation. This means that they can use an alternative asset to satisfy a legacy or interest in the estate, provided no specific beneficiary is affected
Except: asset used to do so is cash or equivalent (eg: gov bonds, quoted shares)
23
Q
What does a surviving spouse receive under intestacy rules?
A
personal chattels,
£322,000, and
half of the residue.
24
Q
Can an executor sell some of the deceased’s furniture and garden equipment legally without a grant of representation?
A
Yes, the executor could sell them by showing a death certificate proving the death
(similar for National Savings Bank Accounts, premium bonds, national savings certi, building society)
25
When is IHT due?
6 months from the end of the month in which the deceased died
26
If the PRs advance capital to a beneficiary before they are entitled to it under the will or intestacy, and the beneficiary dies before satisfying the age contingency, does their estate have to repay the amount of the advance?
No, the amount is not recoverable
27
How long should PRs delay distributing the entire estate if they are worried about a possible claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975?
6 months from the date of the grant
28
Having obtained a Certificate of Discharge from further IHT liability from HMRC, the PRs discover a previously unknown asset which affects the IHT payable. Does the Certificate of Discharge protect the PRs from that further liability?
No
(exceptions also include fraud, failure to disclose material facts or changes in IHT liab due to variation)
29
What are the conditions for a valid variation?
A variation allows a beneficiary to change who receives their inheritance.
To be effective for tax purposes, a variation must be
made in writing,
made within two years of death, and
not made for monetary consideration
Can be made even after taking benefit of gift (disclaimer cannot be made after taking benefit)
30
How can a gift be discliamed?
Oral or in writing
(Required in writing if a benefit already taken, or the disclaimer affects the IHT,CGT liability)
Bets practice is to get a deed disgned
31
What kind of executors need to be cleared off?
Non appointed executors, or executors who are dead or have renounced
(needs to clear off anyone with a better right; dead or alive)
32
What is dependent relative revocation/conditional revocation?
allows a revoked will to be revived when revocation of that will was conditioned upon the validity of the new will
(where the new will is deemed invalid)
33
Can intangible assets be valid subject matter of a trust?
Yes (they are certain and identifiable)
Tangible (eg wine bottles) are not (as they cannot be segregated)
34
Which property passes outside the will or intestacy?
1.Joint prop
2. Life assurance policies
3. Pension Scheme death benefits (there are exceptions)
4. Life interest in trust prop
5. Gift where donor had received benefit (eg: stayed in gifted house)
(these are included in IHT)
35
Can a beneficiary with a contingent interest get capital?
Yes
The interest can be vested or contingent and executor has discretion to advance capital
36
When does a class of beneficiaries close when the testator dies and there is a contingent gift?
Generally, a class closes-to the exclusion of any potential beneficiary not then living-when at least one beneficiary has a vested interest.
When there is a contingent gift, the class closes at the date of the testator's death if there is any living beneficiary who has met the condition. If there is no beneficiary who meets the condition, the class remains open until the first beneficiary does
37
What is the effect of marriage on a will?
A marriage revokes a pre-existing will unless it is clear from the will that
(1) the testator was expecting to marry a particular person and
(2) the testator intended that the will should not be revoked by the marriage
38
What are the two circumstances in which the presumption that the testor knew the contents of their will when they signed it does not apply?
1. if the testator was blind or illiterate at the time the ill was signed
2.if the will was signed under suspicious circumstances
39
What is a certificate of discharge?
Liability for failed potentially exempt transfers by the deceased can arise if the inheritance tax due is still unpaid after 12 months.
The personal representatives can protect themselves from this liability by making full enquiries to discover details of lifetime gifts and obtaining a certificate of discharge from HMRC.
40
Can a demonstrative legacy fail?
A demonstrative legacy is a general legacy which identifies the source of funds from which the gift is to be made.
If the source of the funds no longer exists or has insufficient funds to meet the legacy, the executor can meet the shortfall from other cash or assets in the estate
41
Who will pay the inheritance tax due on an estate, and who will suffer the burden of the inheritance tax payable on the estate?
Inheritance tax due on the death estate is paid by the executors but it is suffered/borne by the residual legatee (not other beneficiaries)
42
What are the factors a court will consider while awarding claims under the 1975 Act?
financial resources/needs of applicant or beneficiary
moral obligation
size and nature of net estate
disability of applicant or beneficiary
Extra factors for spouse:
Age and duration of marriage
Contri made by applicant to welfare of deceased's family
43
Can a ex spouse make a claim under the 1975 Act?
Yes (if they are not remarried)
(marital status of ex spouse should be considered; NOT the testator)
44
In which case can a will be rectified by the court?
In cases of clerical errors or a failure to understand the testator's intention
(court carriers out the testator's intention)
45
What happens when a will cannot be found?
It is presumed to be revoked
(rebuttable presumption if contents of th will can be proved by a copy or draft of the will)
46
Can a will be destroyed to be revoked in the testator's absense?
General principle: Will needs to be destroyed in testator's presence
Exception: Written and executed in the manner a will is, and it shows the intention to revoke and destroy the will
47
What happens when one of the beneficiary is also a witness to a will?
The gift to the beneficiary fails (if the beneficiary or their spouse was a witness)
(the will remains VALID)
48
Does the testator always need to sign the will?
No
Anybody can sign at the testator's behalf and at their instruction in the presence of the testator
Best to add a attestation clause to effect this
49
What are the requirements for mutual wills that concerns land?
It has to be in writing
CANNOT be oral
(other wills not concerning land can be oral)
50
What are the types of class gifts?
1. Immediate class gift
2. Deferred class gift (given for lifetime and then to pass to a class)
3. Contingent class gift
51
What kind of trusts do class closing rule NOT apply to?
Inter-vivos trust (living or lifetime trust)
Class closing rules apply to testamentary trusts only
52
What kind of estates are excepted estates?
Low value excepted estates
The value is below the current IHT threshold (NRB)
The estate is worth £650,000 or less and any unused NRB is being transferred from a spouse or civil partner
The assets in a single Trust are valued below £250,000
Exempt excepted estates
The deceased left everything to a spouse, civil partner, a charity, or community amateur sports club and the estate is worth less than £3 million
Foreign domiciled excepted estates
The deceased was a foreign domiciliary (living permanently outside of the UK) when they died and the value of their UK assets is below £150,000
The above requirements apply to all deaths on or after 1st January 2022. For deaths between 2nd September 2006 and 31st December 2021, the conditions are slightly different for exempt estates: the maximum value for the estate is £1 million, rather than £3 million, when everything is left to a spouse, civil partner, a charity, or community amateur sports club. Additionally, for deaths before January 2022, the limit for assets in a single Trust is £150,000, rather than £250,000
53
What happens when available assets are insufficient to meet all the legacies of the estate?
The legacies will abate proportionally (irrespective whether general or specific legacies)
54
Which type of partner CANNOT apply for a probate?
Unmarried partner
(only married or civil partner can apply)
55
What kind of relatives CANNOT take a grant?
Relatives by marriage
(ONLY relatives of full or half blood are entitled)
56
When is a privileged will invalid for an Army personnel under 18?
When it is NOT made on active duty
(eg: made during a visit)
A Privileged Will is that made by a person who is in active military service, meaning that they are either working in an operational area in the Forces, or they are soon to be posted to one.
You don’t necessarily have to be a soldier to make a Privileged Will: Civilian support staff can also make one, if they are posted to an operational area.
57
Can mutual wills be revoked by marriage?
No
Mutual wills are contracts and excluded from the usual rules of revocation
58
What is an exception to the per stripes rule for direct descendants?
When there is contrary intention in the will
(eg: pass on to children who survive me)
59
Does the per stripes rule apply under intestacy rules?
Yes
When class of members (uncles, aunts, brothers and sisters etc) under intestacy die; their share is also divided intestacy
60
What is the capacity requirement to be a witness to a will?
Witness capable of understanding the significance of being a witness
61
What is the condition for a document to be valid as an incorporated document outside of the will?
It must be in existence at the time of the signing of the will (not at a future date)
62
When does a class close?
At the death of the testator
63
What happens when a will leaves a gift for a class that has no members?
The gift fails (as the class closes on the death of a testator)
64
How many administrators are required when there is a minor's interest?
Minimum 2 (therefore two admins from different classes can apply for grant under intestacy wills)
65
For how long does a spouse need to survive a person to be entitled to a share under intestacy rules?
28 days
Otherwise the share will pass to issue (or other beneficiaries in line)
(this time ONLY applies to INTESTACY wills and NOT wills that are valid)
66
A woman died last month, leaving her entire estate to charities. The woman had been in a civil partnership for the last 18 months and was living with her civil partner. The woman's 15-year-old daughter, her civil partner's 12-year-old son, and the woman's elderly uncle also lived with them. The woman had a well-paid job and covered the household expenses of rent, food, and bills. The civil partner, daughter, son, and uncle are all now considering making claims against the woman's estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Who will be eligible to bring such a claim?
The woman's civil partner, her daughter, her uncle, and the partner's son are all eligible to bring a claim.
Only certain types of applicant are eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The categories of applicant include surviving spouses or civil partners, children of the deceased, persons treated as children of the family, and persons being maintained by the deceased.
The woman's civil partner is therefore eligible to claim as they were in a civil partnership. The woman's daughter is eligible to claim as a child of the deceased. The civil partner's son is eligible to claim as a person treated as a child of the woman. Also, the woman was seemingly maintaining the civil partner's son by paying the household expenses. Likewise, the woman's uncle was being maintained by the woman and so is eligible to claim.
67
Will trusts for the purpose of religious masses or a memorial to another person be valid?
Yes
As per case law
68
If a beneficiary dies before a settlor, which kind of gift does NOT lapse?
Joint interest in a gift ("jointly")
The joint interest passes on by survivorship
(TIC lapses and falls into residue; "in equal shares")
69
In which cases does a failed share pass onto issue?
1. When a general gift lapses because the beneficiary dies before the settlor (gifts to descendants are saved for their issue)
2. Intestacy
70
What is the order of entitlement of grant for letters of administration with will annexed?
1. Appointed executors
2. Trustee of residuary estate
3. Residuary beneficiary/ anyone entitled to residue (vested interest>contingent interest)
4. PR of 1. or 2. (except for life tenant)
5. Any other beneficiary or creditor
6. PR of any of above (except life tenant)
71
What is the order of entitlement of grant for letters of administration?
1. Surviving spouse
2. Children (not step children)
3. Parents
72
Who does chain of representation does not apply to?
1. Administrators (only executors can take)
2. Minor (but can as part of multiple executors)
73
True or false? Registering a decedent's death with their bank will entitle the PR to withdraw the funds from the deceased's account.
False, registering the grant (when issued) gives the PR access to the deceased's assets, not the death certificate.
74
True or false? If there is no attestation clause, a witness or other person present when the will was executed must provide an affidavit of due execution.
True
If a will does not contain an attestation clause, an affidavit of due execution by those who witnessed the will would be required by the Registrar before the will is admitted to probate.
75
A PR is also a beneficiary of a specific legacy. Does the PR have to assent to themself to vest the legal title in themself?
Yes
This is because the PR must complete the administrative process to transfer the legal title from the estate to the beneficiary, even if they are the same person.
76
A beneficiary wishes to recover property which the PRs have wrongly transferred to someone else. Which form of action should they bring?
A beneficiary who wishes to recover property that has been wrongly transferred by the personal representatives should bring an action for 'tracing'.
Tracing is a process by which a claimant can identify their property (or its proceeds) in the hands of another person and claim it back.
77
True or false? If an Inheritance (Provision for Family and Dependants) Act 1975 claim is successful, the court can award a lump sum out of the deceased's net estate and/or the deceased's share in joint property, such as a house.
True, the court can award a lump sum out of the deceased's net estate and/or the deceased's share in joint property, such as a house.
78
Which kind of person does not need to be cleared off?
A person in the same class
People with better right need to be cleared off NOT the same right
79
Does the PR of a spouse have right to get letters of admin before the issue?
No
Exception: The spouse is entitled to the whole estate then PR has better right than issue
80
Which kind of gifts cannot be paid out early?
Contingent gifts
(if interest of a minor then the gift cannot be paid out and the trustee must keep it till the contingency is met or not met)
81
What is the doctrine of marshalling?
equitable principle that ensures fair treatment of creditors when the assets of a deceased person's estate are insufficient to cover all debts.
It allows creditors to claim against different parts of the estate in a manner that maximises the satisfaction of all debts.
Essentially, if a creditor has a claim against multiple assets, they must first exhaust the assets that are not specifically designated to other creditors, thereby leaving the designated assets available for those creditors who have no other recourse.
82
A woman makes a will which leaves her whole estate equally to her son and daughter. The will is witnessed by three witnesses: the woman's uncle, the woman's neighbour, and the woman's son.
What is the validity of the will and its gifts?
The will is valid, and the son and daughter will each receive one-half of the woman's estate, as the will has been appropriately witnessed.
A gift in a will fails if the beneficiary of that gift or the beneficiary's spouse or civil partner witnesses the will. However, the gift does not fail if, ignoring the attestation by the beneficiary or spouse or civil partner, there are at least two other witnesses who are not beneficiaries or their spouses or civil partners. Here, a beneficiary, the son, witnessed the will, but it was also witnessed by two witnesses who are not will beneficiaries.
Therefore, the will is valid, and the gift to the woman's son will take effect even though he was a witness.
83
A television celebrity has an estate worth £3,000,000. He is thinking about bequeathing some of his assets to charity. The nil rate band in the relevant tax year is £325,000.
What is the minimum amount the celebrity must bequeath to a charity to qualify for a reduced inheritance tax rate?
£267,500. To qualify for the reduced inheritance tax rate, at least 10% of the net chargeable estate needs to be left to charity. The net chargeable estate is £2,675,000, after the deduction of the nil rate band. 10% of this equals £267,500.
84
A woman who ran her own consulting business as a sole trader recently died. Her assets (all of which pass to her daughter) total £30,000. In addition to funeral expenses (£4,000), the woman owed debts to the following creditors:
£2,800 to the one employee of her business for the past three months' wages;
£25,000 to trade suppliers; and
£10,000 to her husband.
What is true with respect to payment of the woman's debts and funeral expenses?
Only the funeral expenses will be paid in full.
This is an insolvent estate, as there are insufficient assets to pay all expenses and debts in full. All debts are unsecured and must be paid in the prescribed order. The order is funeral. testamentary, and administration expenses, followed by preferred debts, then ordinary debts, then interest on preferred and ordinary debts, and finally deferred debts. Each creditor ranks equally in a category, and their payments abate proportionally.
Here, the funeral expenses must be paid first, and there are sufficient funds to pay the £4,000 in full.
Next are preferred debts, which are the wages and salaries of the deceased’s employees in the four months prior to death, up to a maximum of £800 each. Therefore, the woman’s employee will receive only £800 as a preferred debt payment.
Next are ordinary debts, comprising the trade suppliers and the balance of the sum owing to the employee.
At this point, there is £25,200 left to pay £27,000 of ordinary debts. As there are insufficient funds to cover the sum due to the ordinary creditors, they will receive the same proportion of the sum owed to them.
Finally, loans from the deceased’s spouse are deferred debts, so the woman’s husband is a deferred creditor who has the lowest priority. He will receive nothing, as there are no funds left to pay him.
85
How should secured debts be paid?
From the property against which they are secured
(even if the prop is given to a person)
