Succession, Wills and Probate

Description

Succession, Wills and Probate is an ideal textbook for those taking an undergraduate course in this surprisingly vibrant subject, and also provides a clear and comprehensive introduction for professionals. Against an account of the main social and political themes of succession law, the book gives detailed explanations of core topics such as alternatives to wills and the making, altering and revocation of wills. It also explains personal representatives and how they should deal with a deceased person's estate and interpret and implement the will. Gifts may fail, estates may be insolvent or a person may die intestate, without a will at all. Increasingly relatives and others seek to challenge the will, for example on the grounds of the testator's capacity or under the law of family provision. This third edition is edited, updated and revised to take account of new legislation and case law across all the relevant issues, including a new final chapter dealing with the potentially contentious issues that are becoming more central to professional work in the field of succession. Cover Title Page Copyright Page Outline Contents Table of Contents List of Figures Preface Table of Cases Table of Statutes Table of Statutory Instruments 1 History 1.1 Why study the history of succession law? 1.2 Underlying issues remain the same: the old solutions may be the best ones 1.3 Some things are gone forever 1.4 Land and personalty 1.5 Land 1.6 Personalty 1.7 Wills 1.8 Uses 1.9 Formalities 1.10 Married women: dower and curtesy 1.11 Executors 1.12 Intestacy 1.13 Administrators 1.14 Lay courts 1.15 Conflicts of laws, international and regional law and the global context 1.16 Summary of Chapter 1 1.17 Further reading 2 Will Substitutes 2.1 Lifetime gifts 2.2 Formalities 2.3 Nominations 2.4 Life insurance 2.5 Contracts to make a will or leave property by will 2.6 Donationes mortis causa 2.7 Imperfect gifts/incompletely constituted trusts 2.8 Joint tenancies 2.9 Secret and half-secret trusts 2.10 Statutory succession 2.11 Summary of Chapter 2 2.12 Further reading 3 Nature and Characteristics of a Will 3.1 Meaning of ‘will’ 3.2 Intention to make a will 3.3 Conditional wills 3.4 Testator may do other things by will than dispose of property 3.5 When is a will valid? 3.6 Provisions must be certain to be valid 3.7 Contents of wills 3.8 Summary of Chapter 3 4 Capacity to Make a Will 4.1 Need for testamentary capacity, free will and knowledge and approval 4.2 Assessing testamentary capacity 4.3 Testamentary and general capacity 4.4 Supervening mental incapacity 4.5 An alternative approach? 4.6 The infirm client 4.7 Judges or doctors? 4.8 Undue influence 4.9 Knowledge and approval 4.10 Lack of knowledge and approval or some other issue? 4.11 Mistake 4.12 Summary of Chapter 4 4.13 Further reading 5 Formalities for the Execution of Wills 5.1 Background to the current provisions as to formalities 5.2 Current provisions as to formalities 5.3 The formalities – s 9 itself 5.4 In writing 5.5 Signed by the testator 5.6 Signature on the testator’s behalf 5.7 Signature of the whole will 5.8 Intention to give effect to the will by the signature 5.9 Signature or acknowledgment in the presence of witnesses 5.10 Acknowledgment of signature 5.11 Presence 5.12 Simultaneous presence of testator and each witness on that witness’ signature 5.13 Acknowledgment of signature by a witness 5.14 What the witnesses need to know 5.15 Capacity to be a witness 5.16 Attestation clause 5.17 Beneficiary as witness 5.18 Date 5.19 Doctrine of incorporation by reference 5.20 Safekeeping a will: deposit and registration 5.21 Summary of Chapter 5 5.22 Further reading 6 Special Wills 6.1 Privileged wills 6.2 Foreign wills 6.3 International wills 6.4 Joint wills 6.5 Mutual wills 6.6 Religious wills 6.7 Statutory wills 6.8 Loss of capacity: beyond statutory wills 6.9 Summary of Chapter 6 6.10 Further reading 7 Revocation of Wills 7.1 A will is ambulatory 7.2 Marriage and formation of a civil partnership revokes a will 7.3 Destruction 7.4 By later will or codicil 7.5 Duly executed writing declaring an intention to revoke 7.6 Conditional revocation 7.7 Revocation and privileged wills 7.8 Summary of Chapter 7 8 Alteration, Republication and Revival 8.1 Alteration 8.2 Republication 8.3 Revival 8.4 Summary of Chapter 8 9 Intestate Succession 9.1 General structure of the intestacy rules 9.2 Disadvantages of relying on the intestacy rules 9.3 Entitlements on intestacy 9.4 Spouse or civil partner entitlement 9.5 Property rights claims 9.6 Matrimonial home 9.7 Issue: definition 9.8 Other relatives 9.9 Failure of intestate benefits 9.10 Partial intestacy 9.11 Summary of Chapter 9 9.12 Further reading 10 The Classification and Failure of Gifts 10.1 Classification of gifts 10.2 Different effects 10.3 Failure of gifts 10.4 Effect of failure 10.5 Disclaimer and variation: choice by the beneficiary 10.6 Lapse 10.7 Ademption 10.8 Witnessing of the will by beneficiary or beneficiary’s spouse 10.9 Dissolution or annulment of marriage or civil partnership 10.10 Public policy and illegality 10.11 Inalienability; perpetuities and accumulations 10.12 Insolvency and abatement 10.13 Dealing with uncertainty 10.14 Non-compliance with condition 10.15 Fraud 10.16 Summary of Chapter 10 10.17 Further reading 11 Construction of Wills 11.1 General principles: rules of construction 11.2 Basic presumption – words have their ordinary meaning 11.3 Particular points 11.4 Ambiguity 11.5 Extrinsic evidence 11.6 Patent ambiguity – pre- 1983 rules 11.7 Latent ambiguity – pre- 1983 rules 11.8 Ambiguity after 1982 11.9 Direct extrinsic evidence 11.10 Circumstantial extrinsic evidence – the armchair principle 11.11 Section 21 of the Administration of Justice Act 1982 11.12 Decisions the courts have reached 11.13 The doctrine of election 11.14 Absolute or lifetime gifts? 11.15 The rule in Lassence v Tierney 11.16 Exercise of power of appointment by will 11.17 Children 11.18 Age of majority 11.19 Dates from which a will speaks 11.20 Property and s 24 of the Wills Act 1837 11.21 Beneficiaries 11.22 Class gifts 11.23 Class-closing rules 11.24 Summary of Chapter 11 12 Personal Representatives 12.1 Duties of the personal representatives 12.2 Doctrine of relation back 12.3 What is a grant of representation? 12.4 Executors 12.5 Express appointment 12.6 Implied appointment 12.7 Settled land executors 12.8 Executors appointed under a power in the will 12.9 Executors appointed by the court 12.10 Executor by representation – s 7 of the AEA 1925 12.11 Executors de son tort 12.12 Who may be an executor 12.13 Renouncing probate 12.14 Citation 12.15 Administrators 12.16 Order of priority where there is a will – NCPR r 20 12.17 Order of priority where there is no will NCPR r 22 12.18 Clearing off 12.19 Form of grants of representation 12.20 Obtaining a grant 12.21 Caveats – NCPR r 44 12.22 Omissions from probate 12.23 Revocation of grants 12.24 Powers of amendment 12.25 Effect of revocation 12.26 Special and limited grants 12.27 Other grants 12.28 The duties of personal representatives and trustees 12.29 Personal representatives and trustees: different rules and roles 12.30 When does a personal representative become a trustee? 12.31 Removal and retirement of personal representatives 12.32 Summary of Chapter 12 13 Administration of Estates 13.1 What is in the estate? 13.2 What has to come out of the estate and when? 13.3 Dealing with the assets and liabilities 13.4 Ascertaining the beneficiaries 13.5 Dealing with an estate pending distribution 13.6 Is the estate solvent? 13.7 What if the estate is insolvent? 13.8 Managing the property in the estate 13.9 Assents 13.10 Appropriation 13.11 Does a beneficiary have a proprietary interest? 13.12 Apportionments 13.13 The incidence of debts and legacies 13.14 The incidence of debts, expenses and liabilities 13.15 Problems with the First Schedule 13.16 Debts charged on specific property – s 35 13.17 Marshalling 13.18 The incidence of general or pecuniary legacies 13.19 Liability of a personal representative 13.20 Rights of wrongfully deprived beneficiaries 13.21 Summary of Chapter 13 13.22 Further reading 14 Tax and Tax Planning 14.1 Principles of taxation in succession matters to be applied to minimise liability 14.2 Tax avoidance, transfer of assets and paying for care 14.3 The development of Inheritance Tax 14.4 Basic concepts 14.5 Lifetime IHT on death 14.6 Exemptions on death 14.7 Potentially exempt transfers (PETs) – s 3A(1) of the IHTA 1984 14.8 Settlements for IHT 14.9 Gifts with a reservation 14.10 Pre-owned asset tax (‘POAT’) 14.11 Related property and associated operations 14.12 Life assurance policies 14.13 Death 14.14 Commorientes and survivorship 14.15 Capital Gains Tax 14.16 Interaction with Inheritance Tax 14.17 Liability of the estate to CGT 14.18 Valuation of the estate 14.19 Liability, burden and payment of IHT 14.20 Tax planning between spouses 14.21 Post-death tax planning 14.22 Income Tax 14.23 Summary of Chapter 14 15 Family Provision 15.1 Restrictions on testamentary freedom 15.2 Challenging the will – or intestacy 15.3 Reasons for family provision legislation 15.4 Who may claim now: the 1975 Act as amended 15.5 How to claim – an overview 15.6 The deceased – against whose estate can application be made? 15.7 When to apply 15.8 Who may apply 15.9 Section 1(1)(a) – spouse or civil partner of the deceased 15.10 Section 1(1)(b) – former spouse or civil partner who has not remarried or formed new civil partnership 15.11 Section 1(1)(ba) – unmarried cohabitant during two years preceding death (deaths after 1995) 15.12 Section 1(1)(c) – child of the deceased 15.13 Section 1(1)(d) – child of the family 15.14 Section 1(1)(e) – dependants 15.15 What the applicant may claim – matters to which the court has regard 15.16 Statutory guidelines in assessing reasonableness – s 3(1)(a–g) of the I(PFD)A 1975 15.17 Section 3(1)(a), (b), (c) – financial resources and needs of applicants and beneficiaries 15.18 Section 3(1)(d) – deceased’s obligations 15.19 Section 3(1)(e) – size and nature of estate 15.20 Section 3(1)(f) – disability 15.21 Section 3(1)(g) – any other matter 15.22 Applying s 3(1) to the claimant s 3(2)–(4) 15.23 Section 3(2) – spouse and former spouse 15.24 Section 3(2A) – cohabitants 15.25 Section 3(3) – child of the deceased and child of the family 15.26 Section 3(4) – dependants 15.27 Any impediments to bringing a claim? 15.28 If no claim lies under the 1975 Act 15.29 Orders which the court can make 15.30 Defining ‘maintenance’ 15.31 How the court may carry out calculations – example 15.32 Property available for provision 15.33 Burden of orders 15.34 Anti-avoidance 15.35 Family provision and contracts to leave by will 15.36 How to apply – jurisdiction and procedure 15.37 Costs 15.38 Summary of Chapter 15 15.39 Further reading 16 Problem-Solving and Contentious Issues 16.1 Practical and contentious issues 16.2 Liability of lawyers in tort 16.3 The likely sources of trouble 16.4 Where the will seems to be wrong: an outline of practical approaches 16.5 Human rights claims: delay, discrimination and disposal of the dead 16.6 Conclusion 16.7 Further reading Index