Contents. Table of Statutes. Table of Secondary Legislation. Table of Cases. Introduction to the Law of Succession. The Mind of the Testator

Transcription

1 Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: Introduction to the Law of Succession 1.1 Succession 1.2 Technical terms 1.3 Property that wills or the intestacy rules cannot give away Donatio mortis causa Joint property Life assurance policies and pension scheme benefits Nominations Trust interests and property held in a fiduciary capacity 1.4 Summary Chapter 2: The Mind of the Testator 2.1 Introduction 2.2 Capacity to make a will Age Mental competence Making a will The extent of their property The moral claims on their generosity Cases illustrating how mental competence has been assessed in practice The lucid interval Insane delusions The time to apply the test 2.3 The burden of proof and presumptions relating to mental capacity 2.4 Precautions 2.5 Intention to make a will 2.6 Knowledge and approval Time of knowledge and approval Burden of proof suspicious circumstances Blind or illiterate testators or the will signed on the testator s behalf Precautions 2.7 Mistake Mistake as to the whole will Mistake as to the words used Mistake by the testator as to part of the will Mistake by a draftsman as to part of the will The statutory power to rectify Rectification in preference to other courses of action 2.8 Force, fear, fraud and undue influence Force or fear Fraud Undue influence Gifts to solicitors and members of their staff i

2 2.8.5 Gifts to chartered legal executives 2.9 Reform 2.10 Summary Chapter 3: Formalities for Making a Will 3.1 Introduction 3.2 Formalities in s9 Wills Act Writing and signature Form and manner of the signature The position of the signature Will with more than one page The envelope cases Signature on the testator s behalf The interpretation of s9(b) 3.4 Function of the witnesses Meaning of acknowledged Witnesses acknowledgment Presence of witnesses Knowledge required by the witnesses 3.5 Attestation clauses 3.6 The witness as beneficiary 3.7 Summary Chapter 4: Privileged Wills 4.1 Introduction 4.2 Soldier Actual military service Application of Re Wingham 4.3 Mariner At sea 4.4 Testamentary intention 4.5 Revocation 4.6 Are privileged wills still needed? 4.7 Summary Chapter 5: Incorporation by Reference 5.1 Introduction 5.2 In existence at the date of execution of the will 5.3 Referred to as in existence at the date of the will 5.4 Clear identification of the document 5.5 The effect of incorporation 5.6 Summary Chapter 6: Revocation of Wills 6.1 Introduction 6.2 Express revocation Lack of knowledge and approval 6.3 Revocation by implication Failure of the revoking gift ii

3 6.3.2 Intention to revoke must be unambiguous 6.4 Revocation by destruction The act of destruction Intention 6.5 Presumption as to revocation Proof of lost or destroyed wills 6.6 Dependent relative (conditional) revocation 6.7 Revocation by marriage and civil partnership Wills made in expectation of marriage or civil partnership Divorce, nullity and dissolution of a civil partnership 6.8 Summary Chapter 7: Mutual Wills 7.1 Introduction 7.2 The principle of the mutual will The agreement When does the trust arise? What property does the trust affect? What is the nature of the trust? 7.3 Criticisms of mutual wills 7.4 Summary Chapter 8: Alterations to Wills 8.1 Introduction 8.2 Alterations and obliterations 8.3 Alterations made before the execution of the will 8.4 Alterations and obliterations made after the execution of the will 8.5 Codicil republishing an altered will 8.6 Summary Chapter 9: Republication and Revival Chapter 10: Intestacy 9.1 Introduction 9.2 Republication 9.3 Revival 9.4 Summary 10.1 Introduction 10.2 Partial intestacies 10.3 The s33 statutory trust 10.4 Distribution on intestacy The s46 order of entitlement The s47 statutory trusts Distribution if there is a surviving spouse or civil partner and no issue The entitlement of the spouse/civil partner where there is issue The family home Personal chattels iii

4 Distribution on intestacy where there is no surviving spouse/ civil partner Disclaimers and forfeiture 10.5 Legitimacy, illegitimacy, adoption 10.6 Intestacy rules deaths before 1 October Reform of the intestacy rules 10.8 Summary Chapter 11: Family Provision 11.1 Introduction 11.2 The nature of the right to bring an application 11.3 Domicile 11.4 Locus standi s1(1)(a) the wife or husband or civil partner of the deceased Polygamous marriages s25(4) void marriages Judicially separated spouses and separated civil partners s1(1)(b) a former wife or former husband or former civil partner of the deceased who has not yet remarried or entered into a further civil partnership s1(1)(ba) a person living in the same household as husband or wife or civil partner s1(1)(c) a child of the deceased s1(1)(d) a person treated as a child of the family s1(1)(e) a person maintained by the deceased Immediately before death 11.5 Reasonable financial provision The objective test The common guidelines 11.6 Particular guidelines: the spouse or civil partner standard Former spouses who have not remarried A person living in the same household as husband or wife A child of the deceased A child of the family Any other person maintained by the deceased (s1(1)(e) applicants) 11.7 Legally unenforceable assurances 11.8 Time limit (s4) 11.9 The property available the meaning of net estate (s25(1)) Anti-avoidance provisions (ss10 and 11) Order for the donee to make financial provision (s10) Power to modify deceased s contract for disposition (s11) Court s power to make orders (s2) Law reform Summary Chapter 12: Legacies and Devises 12.1 Introduction 12.2 Specific legacies 12.3 General legacies Interest on general legacies 12.4 Demonstrative legacies iv

5 12.5 Pecuniary legacies 12.6 Residuary legacies 12.7 Summary Chapter 13: The Failure of Gifts 13.1 Introduction 13.2 Ademption Ademption and the option to purchase Interpreting gifts (s24 Wills Act 1837) 13.3 Disclaimer 13.4 Lapse Joint tenancy and tenancy in common gifts Class gifts s33 Wills Act The statutory presumption as to survivorship: commorientes 13.5 Forfeiture Reform of the consequences of the law of forfeiture 13.6 Other reasons for the failure of gifts Abatement Beneficiary witnesses will Uncertainty 13.7 Summary Chapter 14: Construction of Wills 14.1 Introduction 14.2 Two broad approaches to the construction of wills 14.3 The rules of construction 14.4 The meaning of words and phrases 14.5 The admission of extrinsic evidence The general rule s21 Administration of Justice Act Deciding if a gift is absolute or limited s22 Administration of Justice Act The rule in Lassence v Tierney [1849] 14.7 Subsidiary principles of construction 14.8 Gifts by description to children and other relatives Children whose parents were never married Legitimated children Adopted children Same-sex marriages Other related rules 14.9 Summary Chapter 15: Personal Representatives: Obtaining the Grant 15.1 Introduction 15.2 Executors Appointment of a firm Implied appointment of the executor Passing over and substitution of executors The number of executors The persons who may be appointed as executors v

6 Chain of representation Acceptance of office Renunciation 15.3 Administrators 15.4 The executor de son tort 15.5 Small estates 15.6 Grants of probate and administration 15.7 Administration de bonis non administratis 15.8 Revocation of grants Effect of revocation 15.9 Foreign grants Summary Chapter 16: Personal Representatives: Powers and Duties 16.1 Introduction 16.2 Distinguishing executors and administrators 16.3 Duties of the personal representatives Collection of assets Payment of debts The ascertainment of debts Distribution of the estate The ascertainment of beneficiaries 16.4 The powers of the personal representatives General powers of administration Investment Appropriation Insurance Appointment of trustees of an infant s legacy Maintenance Advancement Power to carry on a business Remuneration Delegation 16.5 Summary Chapter 17: The Administration of the Estate 17.1 Introduction 17.2 What assets should the personal representatives sell? 17.3 Problems with payment of debts When is an estate insolvent? When is a debt secured or unsecured? 17.4 The solvent estate Secured debts s35 Administration of Estates Act Contrary intention reversing the effect of s Unsecured debts The statutory order Practical applications of the statutory order Contrary intention and alteration of the statutory order Marshalling 17.5 The insolvent estate Secured creditors vi

7 Unsecured creditors and the order in bankruptcy Liability for not following the bankruptcy order Insolvent estates and joint property Some additional points regarding insolvent estates 17.6 Payment of legacies Pre-1925 rules Post-1925 rules undisposed-of property Post-1925 rules where s33 Administration of Estates Act 1925 does not apply 17.7 Distribution of the assets Ascertainment of the beneficiaries The rights of the beneficiaries pending distribution Assents Assents to personalty Assents to land The power to set off legacies against debts Bankrupt beneficiaries The administration period Personal representative or trustee? 17.8 Summary Chapter 18: Liability of the Personal Representatives 18.1 Introduction 18.2 Devastavit: breach of duty by a personal representative 18.3 Breach of trust 18.4 Duty to account 18.5 Administration by the court 18.6 Defences of personal representatives 18.7 Limitation of actions 18.8 Action against the recipient of assets 18.9 Summary Answers to Self-assessment Questions Index vii

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