Law of Succession

301 Pages·1997·25.392 MB·English

by  Catherine Rendell (auth.)

Macmillan Law Masters
Law of Succession
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Law of Succession
Catherine Rendell
Senior Lecturer in Law
University of Hertfordshire
Law series editor: Marise Cremona
Senior Fellow, Centre for Commercial Law Studies
Queen Mary and Westfield College, University of London
~
MACMILlAN
© Catherine Rendell 1997
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First published 1997 by
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Companies and representatives
throughout the world
ISBN 978-0-333-61735-9 ISBN 978-1-349-13510-3 (eBook)
DOI 10.1007/978-1-349-13510-3
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v
Contents
Preface IX
Table of Cases X
Table of Statutes xix
Table of Rules and Orders XXVI
Part I THE LAW RELATING TO WILLS
1 Nature and function of wills 3
1.1 Nature of a will 3
1.2 Functions of a will 6
1.3 Property passing on death other than by a will 10
1.4 Contracts to create a will; proprietary estoppel 16
1.5 Conditional, joint and mutual wills 18
1.6 Living wills 23
2 The creation of a valid wiD 27
2.1 Capacity to make a valid will 27
2.2 Knowledge and approval 33
2.3 Formal requirements for the creation of a will 38
2.4 The doctrine of incorporation by reference 47
2.5 Privileged wills 49
3 Revocation, alteration, republication and revival of wins 54
3.1 Express revocation 54
3.2 Implied revocation 56
3.3 Revocation by destruction 57
3.4 Doctrine of conditional revocation 60
3.5 Revocation by marriage 61
3.6 Revocation by divorce 63
3.7 Alteration of wills and codicils 65
3.8 Revival and republication of wills 69
vi Contents
4 Gifts by will and their failure 75
4.1 Types of gifts 75
4.2 Doctrine of ademption 77
4.3 Doctrine of lapse 80
4.4 Commorientes 84
4.5 Mistake, fraud and undue influence 87
4.6 Uncertainty 87
4.7 Beneficiary or spouse of beneficiary witnessing
the will 88
4.8 Forfeiture 89
4.9 Perpetuity 90
4.10 Private purpose trusts 91
5 Construction of wills 95
5.1 General principles 95
5.2 Admissibility of evidence 99
5.3 Ascertaining the subject matter of gifts 102
5.4 Ascertaining the beneficiaries 104
5.5 The class closing rules 107
Part II INTESTACY
6 Total and partial intestacy 115
6.1 The statutory trust for sale 116
6.2 Rights of a surviving spouse 117
6.3 Special rights of a surviving spouse 122
6.4 Rights of issue 125
6.5 The rights of other relatives 127
6.6 Adopted, legitimated and illegitimate children 129
6.7 Intestate succession and human-assisted
reproduction 130
6.8 Forfeiture and intestacy 131
6.9 Commorientes and intestacy 131
Part III OBTAINING A GRANT OF REPRESENTATION
7 Grants of representation 137
7.1 Source, purpose and types of grant 137
7.2 Executors and administrators 138
7.3 Capacity to take out a grant 140
7.4 Executor de son tort 141
7.5 Grants of probate 141
Contents Vll
7.6 Grants of administration with the will annexed 145
7.7 Grants of simple administration 148
7.8 Renunciation 150
7.9 Passing over 151
7.10 Limited grants 152
7.11 Incomplete administration 155
7.12 Revocation of grants 156
7.13 Foreign grants 158
8 Probate jurisdiction 162
8.1 Territorial limits 162
8.2 Non-contentious probate 162
8.3 Caveats and citations 164
8.4 Contentious proceedings 166
Part IV ADMINISTRATION OF ESTATES
9 Collection, realization and management of estates 171
9.1 Collection and preservation of the estate 171
9.2 Devolution of assets on personal representatives 173
9.3 Powers of sale, mortgage and leasing 175
9.4 Power of appropriation 176
9.5 Power to appoint trustees 176
9.6 Powers to insure assets 177
9.7 Power of delegation 177
9.8 Powers of investment 179
9.9 Power to carryon the deceased's business 181
10 Payment of expenses, debts and pecuniary legacies 184
10.1 The duty to pay debts and discharge other liabilities 184
10.2 Personal representatives' powers in respect of debts 185
10.3 Funeral, testamentary and administration expenses 186
10.4 Payment of debts and solvent estates 186
10.5 Doctrine of marshalling 194
10.6 Debts and insolvent estates 195
10.7 Incidence of pecuniary legacies 198
II Distribution of the estate 205
11.1 Time for distribution 205
11.2 Position of the beneficiaries during the
administration period 206
11.3 Ascertaining the beneficiaries and creditors 208
viii Contents
11.4 Income and interest on gifts 211
11.5 Power of appropriation 216
11.6 Distribution to minors 216
11.7 Assents 217
11.8 Transition from personal representative to trustee 220
12 Remedies of the beneficiaries and creditors 225
12.1 Administration by the court and specific relief 225
12.2 Action against the personal representatives 227
12.3 Defences of personal representatives 228
12.4 Substitution or removal of a personal representative 232
12.5 Actions against the recipients of assets 232
Part V POST-MORTEM ALTERATIONS
13 Inheritance (Provision for Family and Dependants) Act 1975 241
13.1 Background 241
13.2 Categories of applicant 242
13.3 Jurisdiction and choice of court 248
13.4 Time limits for applications 248
13.5 The test of reasonable financial provision 250
13.6 Criteria for deciding whether or not an order should
be made 256
13.7 Property available for financial provision 256
13.8 Forms of provision which the court may make 258
13.9 The effect and burden of the order 259
13.10 Anti-avoidance provisions 259
14 Disclaimers and variations 265
14.1 Reasons for refusing a gift made by will or
entitlement of intestacy 265
14.2 Disclaimers 267
14.3 Variations 268
Appendix: Draft Will 271
Glossary 275
Index 278
IX
Preface
The law of succession is concerned with how a person's assets are disposed
of on their death. It is also concerned with estate planning during a
person's lifetime in order to minimise the effects of taxation on the estate
on death. It is not, however, the intention of this book to provide a
detailed explanation of either estate planning or the effects of taxation on
death, but to ignore these areas entirely would result in providing an
unreal view of the law of succession overall.
All adults who have sufficient mental capacity may determine how their
assets are to be disposed of on death by making a will in the form
prescribed by the law. But if a person does not make a will, or if the will
fails to dispose of all his or her property, the rules of intestacy set down in
the Administration of Estates Act 1925 (as amended) provide fixed and
detailed provisions as to how their property is to be disposed of.
Technically speaking, people have total freedom as to how they dispose
of their property on death, in the sense that they can execute a will
disposing of all their property to whoever they wish. However, it is
possible for the terms of a valid will (or the rules of intestacy) to be varied
by the court after the death of the testator to make provision for certain
dependants or for a cohabitee.
The first part of this book (Part I) considers the law relating to wills;
how a valid will is made and revoked, and the precise effect of gifts in wills
and their construction. Part II looks at the inflexible rules of intestacy
which operate if a person has not effectively disposed of their property by
will. Part III considers the process of administration of an estate of a
deceased person, whether the person has died testate (leaving a valid will)
or wholly or partially intestate. Finally, Part IV deals with post-death
alterations which may be made to a person's will or to the effect of the
rules of intestacy, either by the court (to make provision for dependants or
a cohabitee) or by the beneficiaries, who, for some reason, usually
connected with tax consequences, do not want to receive their entitlement.
CATHERINE RENDELL