Law Of Succession And Trusts: Set 1

Front 1

What is needed for Proof of Death?

Back 1

Extract from the Death certificate

Can be challenged (e.g Mistaken Identity)

Front 2

What is the 7 year rule, and what does not affect?

Back 2

A person can be declared dead is they have not been seen or heard from for 7 years, but only for the purposes of succession to some property.

Does not affect marriage status, insurance policies, or pensions.

Front 3

When can a declarator of death be given immediately?

Back 3

When a person is believed to have died in more or less aspecific set of circumstances (were on a plane that never arrived at it's destination, and a body was never recovered)

Front 4

When does the Court of Session have jurisdiction?

Back 4

1) M.P. domicile in Scotland from 1 year before

2) M.P.'s spouse domicile in Scotland from 1 year before

3) Civil partnership registered in Scotland

Front 5

How does a recall/variation of a decree of death affect succession rights?

Back 5

No effect on the acquisition of property as a result of the decree.

Front 6

In cases where thedecree is recalled or varied within 5 years of it being granted then...

Back 6

...the court has adiscretionary power to make such further order as it deems fit in all thecircumstances

Front 7

What does section 6 of the (Presumption of Death 1977) Act require a trustee or executor to do?

Back 7

Take out an indemnity policy to cover thepossibility of any claim being made by someone who loses out as a result of arecall or variation

Front 8

What is the smallest period of survivorship allowable?

Back 8

Any, as long as a beneficiary has survived the deceased UNLESS the will states differently (e.g. must reach the age of 21)

Front 9

What is 'commorientes clause'?

Back 9

A stated period of survivorship, normally 30 days, up to a maximum of 6 months

Front 10

What is common calamities?

Back 10

Two or more people die at the same time and survivorship cannot be established

Front 11

What does Section 31 of the Succession Act 1964 do?

Back 11

Sets out the rule that, for all purposes of succession, the younger person survived the elder where there is no proof as to survival ina common calamity

Front 12

What happens if a common calamity involves husband and wife?

Back 12

It is presumed that neither survived the other. Husband's property goes to his family, wife's to hers, unless will provisions state otherwise.

Front 13

When does the general rule that the younger survived the elder not apply?

Back 13

1) the elder left a will containing a provision in favourof the younger, whom failing, a third party

2) the youngerdied intestate

Front 14

What is the position if more than two persons diesimultaneously and questions of succession arise relating to all of them (e.g. a whole family)?

Back 14

Parents estate falls into intestacy. Children inherit under that. Each get there share, passed to the youngest as the survivor.

Front 15

What is meant by "unworthy heir"?

Back 15

Situations where there is culpable killing by the would-be heir

Front 16

What is the stance on unworthy heirs from Gray v Barr 1971?

Back 16

"The logical test iswhether the person seeking the indemnity was guilty of deliberate, intentionaland unlawful violence or threats of violence …however unintended the finaldeath of the victim may have been"

Front 17

Are there any situations where a beneficiary many not be barred in cases of culpable homicide?

Back 17

Diminished responsibility, but only very rarely and is by no means automatic

Front 18

What happens to the estate when there is an unworthy heir?

Back 18

It is assumed for the purposes of succession that the unworthy heir predeceased the person whose estate is being distributed

Front 19

What happens when a child's parents are not married (for the purposes of succession)?

Back 19

They are treated the same as any other children.

If the will was made before 4 May 2006, and makes referene to "lawful" children, only children of a marriage will benefit

Front 20

Adopted children and succession?

Back 20

Treated as children of the adopter and lose all rights to their natural parents estate

Front 21

What is the difference between being adopted by both parent and only being adopted by one in regards to siblings?

Back 21

Adopted by both parents: sibling of the full blood

Adopted by one: Sibling of the half blood

Front 22

What are posthumous children?

Back 22

Children born after the death of a parent

Front 23

Posthumous children and succession?

Back 23

Children who are in utero are regarded as having beenborn for the purposes of succession as long as the child is born alive and will receive a direct benefit

Front 24

Step-children and succession?

Back 24

No rights in succession

Front 25

What are cohabitants?

Back 25

(a) a man and a womanwho are (or were) living together as if they were husband and wife

(b) two persons of the same sex who are (or were) livingtogether as if they were civil partners

Front 26

Cohabitants and succession?

Back 26

No rights automatically, but can make an application

Front 27

What does an application by a cohabitant take into account?

Back 27

1) The length of period of cohabitation

2)The nature of the relationship during that period

3)The nature and extent of any financial arrangements

Front 28

What is the orderin which debts must be paid?

Back 28

i. Expensesof sequestration if the estate is insolvent

ii. Deathbedand funeral expenses

iii. Secureddebts

iv. Preferreddebts (e.g employees wages)

v. Ordinarydebts

Front 29

What is significant about debts intimated within 6 months of death?

Back 29

They rank equally with creditors, and so no-one can be paid before this time (excluding preferred or secured creditors)

Front 30

Which parts of the estate are debts paid from?

Back 30

Heritable debts from heritable, moveable from moveable

Front 31

What are legal rights?

Back 31

Automatic rights that exist to prevent the exclusion of a wife/husband,civil partner, and /or children from sharing in a deceased’s estate. They cannot be defeated by a will

Front 32

ius relictae/ius relicti

Back 32

The widow’s right to½ of the moveable estate where therewere no children of the marriage and to 1/3 of the moveable estate if therewere surviving legitimate children

Front 33

What is Legitim?

Back 33

The right of thesurviving children to a share of the deceased parent’smoveable estate. 1/3 of the total estate if surviving parent, 1/2 if not.

Front 34

Which parts of the estate can legal rights be claimed from?

Back 34

Moveable estate only

Front 35

How is an estate divided in testate succession with surviving parent and children?

Back 35

1) Surviving Spouse (ius relictaeand ius relicti) (1/3)

2) Legitim (1/3)

3) The Dead's Part (Free Estate in intestacy) (1/3)

Front 36

Who can claim from the legitim fund?

Back 36

1) 'Lawful' children

2) Adopted Children

3) Children of unmarried parents

4) 'Representatives' (e.g children of a pre-deceased child)

Front 37

What is Per Capita division?

Back 37

Where all the children are of the same degree (all children, all grandchildren etc)

Front 38

What is Per Stirpes division?

Back 38

Where the children are on different degrees (e.g. 2 children and 1 grandchild)

Front 39

What happens with children on the lower degree with Per Stirpes division?

Back 39

The share that would have been their parents is divided between them (e.g. the father of 3 children would have gotten 1/2, they each get a third of that)

Front 40

What is Collation inter liberos?

Back 40

Any child who isclaiming legal rights and who has received advances from the parent during thatparent’s lifetime has to pay back such advances to the legitim fund (DOES NOT INCLUDE GIFTS)

Front 41

Coats Trs. V Coats 1914

Back 41

Only one child concerned with the distribution of legitim, so no need to take advances into account

Front 42

How do you calculate legitim with Collation?

Back 42

Add the advance(s) to the total legitim

Divide that amount between the children

Take the amount of the advance off their share

Front 43

What are non-Collatable advances be?

Back 43

1) The cost of education and maintenance of a child

2) A gift, where this was intended to be additional to anyclaim on the legitim fund

3) Payment for services where there has been an onerouscontract between parent and child

4) Loans,as these will have to be paid back to the executor

Front 44

Examples of collatable advances?

Back 44

1) An advanceto set up a child in business

2) An advanceto buy a house

Front 45

Can legal rights be defeated?

Back 45

Not technically, but they can be circumnavigated

Front 46

Hoe do you discharge legal rights?

Back 46

Expressly or by implication either before or after the death

Front 47

What happens if the discharge is made during the deceased's lifetime?

Back 47

The person is treated as dead for the purposes of calculating legal rights and increases the share taken by other claiments

Front 48

What happens if the discharge is made after the deceased's lifetime?

Back 48

The share that would have been the claiments in moved to the dead's part

Front 49

Approbate and Reprobate?

Back 49

You cannot claim a benefit under the will and also claim legal rights