The Law of Succession
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About this ebook
The law of succession is a rich and vibrant subject which has been attracting more legal and academic attention in recent years.With the introduction of the SQE, the subject, which incorporates Wills and Intestacy, Probate and Administration, and Taxation, is likely to grow further in importance and popularity amongst law students.
This textbook is designed to meet the needs of students studying on the LLB, GDL or SQE by introducing them to succession law in a clear and succinct manner, whilst at the same time highlighting the many topics which are controversial and may be in need of reform. The textbook also explains key practical points, such as will drafting, applying for a grant of probate, and calculating inheritance tax.
To aid learning, practical examples are provided, along with an in-depth look at some key cases.
- new and expanded sections on will formalities, duties of personal representatives and remedies for breach of duty by a personal representative
- coverage of Covid-19-specific changes to will-making
- wide-ranging procedural changes to the probate process introduced in November 2020
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The Law of Succession - Richard Hedlund
THE LAW OF SUCCESSION
Hall and Stott Publishing Ltd
27 Witney Close
Saltford
BS31 3DX
© Richard Hedlund 2021
The moral rights of the author have been asserted
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written permission of the copyright holder, application for which should be addressed to the publisher, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organisation.
Contains public sector information licensed under the Open Government Licence v3.0.
British Library Cataloguing in Publication Data
ISBN 978 1 9162431 9 4
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
PREFACE
I’m very grateful for the positive reception given to the first edition of The Law of Succession when it was published in 2019, and it has been a great pleasure to update the book for this second edition. This edition includes a variety of new sections as well as updates to the law throughout. Amongst the many developments in succession law that have happened in the past few years are the responses to Covid-19 (Chapter 3) and the reforms to probate procedures introduced in November 2020 (Chapter 11).
Again, I want to thank Martyn Heathcote for his continued support and assistance in updating the textbook. Any errors, of course, are mine.
The law is correct as of 15 March 2021. However, Chapter 10 (Taxation) has been written based on the 2021/22 tax code, as announced in the Budget in March 2021.
Richard Hedlund
Lincoln
CONTENTS
Preface
Table of Cases
Table of Legislation
Abbreviations
1 Introduction
1.1 What is succession law?
1.2 Key terms in succession law
1.3 Key sources in English succession law
1.4 The historical development of English succession law
1.4.1 Succession of real property prior to the Wills Act 1837
1.4.2 Succession of personal property prior to the Wills Act 1837
1.4.3 Development of succession law from 1837
1.4.4 Future reform of succession law
1.5 International aspects of succession law
2 Testamentary Intention and Capacity
2.1 Age
2.2 Testamentary capacity
2.2.1 Delusions: the original test for testamentary capacity
2.2.2 Banks v Goodfellow: the current test for testamentary capacity
2.2.3 Time: when does the testator need to have testamentary capacity?
2.2.4 Burden of proof: proving testamentary capacity
2.3 The Mental Capacity Act 2005
2.4 Knowing and approving
2.5 Testamentary intention
2.5.1 Undue influence
2.5.2 Testamentary fraud
2.5.3 Forgery
2.6 Further reading
3 Formality Requirements for a Valid Will
3.1 Wills Act 1837, s 9
3.1.1 The will has to be in writing (s 9(a))
3.1.2 The testator must sign the will (s 9(a))
3.1.3 The testator must intend that their signature gives effect to the will (s 9(b))
3.1.4 The testator signs or acknowledges their signature in the presence of two or more witnesses, present at the same time (s 9(c))
3.1.5 Each witness must attest and sign the will or acknowledge their signature in the presence of the testator, but not necessarily in each other’s presence (s 9(d))
3.1.6 Specific amendments to s 9 brought in during the Covid-19 pandemic
3.2 The presumption of due execution
3.3 Reform of s 9 of the Wills Act 1837
3.3.1 Dispensing power
3.3.2 Electronic wills
3.4 Exceptions to the formality requirements
3.4.1 Privileged wills (Wills Act 1837, s 11)
3.4.2 Donatio mortis causa
3.4.3 Secret trusts
3.4.4 Implied trusts and proprietary estoppel
3.5 Further reading
4 Example of a Will
4.1 Example will
4.2 Discussion of the will clauses
4.2.1 Preamble
4.2.2 Clause 1
4.2.3 Clause 2
4.2.4 Clause 3
4.2.5 Clause 4
4.2.6 Clause 5
4.2.7 Clause 6
4.2.8 Clause 7
4.2.9 Clause 8
4.2.10 Attestation clause
4.3 Further reading
5 Rectification and Construction of a Will
5.1 Rectification
5.1.1 Clerical error
5.1.2 Failure to understand instructions
5.1.3 Construction instead of rectification
5.2 Construction
5.2.1 Basic principles of construction
5.2.2 Dual interpretations
5.2.3 Interpretation of specific words
5.2.4 Class gifts and the class-closing rules
5.2.5 Absolute gifts, contingent gifts or life interests
5.2.6 The date a will speaks from
5.2.7 AJA 1982, s 21
5.2.8 Drawing construction and rectification together
5.3 Further reading
6 Amending Wills, Revoking Wills, Reviving Wills and the Failure of Gifts
6.1 Amending a will
6.1.1 How to make changes
6.1.2 Example of a will with changes included
6.1.3 Changes made before a will is executed
6.2 Revoking a will
6.2.1 Revocation by a later will
6.2.2 Revocation by a document executed in accordance with s 9
6.2.3 Revocation by intentional destruction
6.2.4 Conditional revocation
6.3 Revocation by marriage
6.4 Revival
6.5 Failure of gifts
6.5.1 Failure under s 15 of the Wills Act 1837
6.5.2 Failure due to divorce or dissolution of a civil partnership
6.5.3 Lapse
6.5.4 Failure of a gift – no entitlement to dispose of property through a will
6.5.5 Ademption
6.5.6 Abatement
6.5.7 Void for uncertainty
6.5.8 Void for breaching the perpetuity rule
6.5.9 Forfeiture Act 1982
6.5.10 Void for being a capricious gift
6.6 Further reading
7 Mutual Wills
7.1 The requirements for a mutual will
7.1.1 There has to be an agreement between the testators
7.1.2 The parties have to intend the agreement to be binding
7.1.3 The effect of the first testator’s death
7.2 Problems with mutual wills
7.3 Further reading
8 Intestacy
8.1 Definitions: total and partial intestacy
8.2 Administration of intestate estates
8.3 The statutory beneficiaries
8.3.1 The rights of a surviving spouse or civil partner
8.3.2 Entitlement on intestacy if the deceased does not leave a spouse or civil partner
8.4 Further reading
9 Personal Representatives
9.1 Two types of personal representatives
9.2 Executors
9.2.1 Appointment
9.2.2 Eligibility to be an executor
9.2.3 Accepting the office of executor after the testator has died
9.3 Administrators
9.3.1 Order of priority for letters of administration with the will annexed
9.3.2 Disputes over the order of priority for administration with the will annexed
9.3.3 Order of priority for simple administration
9.4 Chain of executors and administration de bonis non
9.5 Passing over a PR
9.6 Further reading
10 Taxation
10.1 Tax and the PR’s duty to pay it
10.2 Income tax
10.2.1 The general income tax rates
10.2.2 Income tax on savings
10.2.3 Income tax on dividends
10.2.4 Relevance to a PR
10.2.5 Relevance to a trustee
10.3 Capital gains tax
10.3.1 Relevance to a PR
10.4 Inheritance tax
10.4.1 Step one: value the estate
10.4.2 Steps two and three: deduct any exemptions and reliefs from the value
10.4.3 Step four: calculate the cumulative total by considering PETs and LCTs
10.4.4 Step five: calculate IHT
10.5 Paying IHT
10.6 Further reading
11 Administration I – The Grant
11.1 Events following death
11.2 Estates exempt from a grant of probate or administration
11.3 Grant of probate or letters of administration
11.3.1 Types of grant
11.3.2 Applying for a grant
11.3.3 Authority to make a grant
11.3.4 Common form and solemn form probate
11.3.5 General and limited grants
11.3.6 When property vests – liability for acts done before a grant is issued
11.4 Obtaining the grant
11.4.1 Caveats
11.4.2 When can a grant be applied for?
11.4.3 The probate application form
11.4.4 The old statement of truth (oath)
11.4.5 Additional documents
11.4.6 Removing words from the will
11.4.7 Fees
11.5 Revoking a grant
11.5.1 The legal position of third parties where a grant is revoked
11.6 Further reading
12 Administration II – Calling in and Managing the Estate
12.1 Obtaining legal title
12.1.1 The estate devolves on the PR
12.1.2 Property that does not devolve on the PR
12.1.3 Other rights and entitlements that devolve on the PR
12.2 Collecting in the estate
12.2.1 Collecting in assets
12.2.2 Calling in debts
12.3 Realising the estate
12.4 Managing the estate
12.4.1 Obtaining legal title and administering the estate assets
12.4.2 Duty to inventory the estate
12.4.3 Duty to account
13 Administration III – Paying Debts
13.1 Debts
13.2 Solvent and insolvent estates
13.3 Assets
13.4 The PR’s duty to pay debts
13.5 Administrative debts
13.5.1 Funeral costs
13.5.2 Administration costs
13.6 Payment of debts in solvent estates
13.6.1 Property subject to a charge
13.6.2 Marshalling
13.7 Payment of debts in insolvent estates
13.7.1 Insolvency administration order
13.7.2 Order of payment in an insolvent estate
13.7.3 Funeral costs and administration expenses
13.7.4 Secured debts
13.7.5 Specially preferred debts
13.7.6 Preferential debts
13.7.7 Ordinary debts
13.7.8 Interest on preferential and ordinary debts
13.7.9 Deferred debts
13.7.10 Duty to follow the statutory order of payment
14 Administration IV – Distribution
14.1 Distribution
14.2 Assents
14.3 Types of gifts
14.3.1 Specific gifts
14.3.2 General gifts
14.3.3 Pecuniary gifts
14.3.4 Demonstrative legacies
14.3.5 Ademption and abatement
14.3.6 Residue
14.4 When does the PR become a testamentary trustee?
15 The Family Provision Rule
15.1 Testamentary freedom
15.2 The Inheritance Act
15.2.1 The deceased’s domicile
15.2.2 Who can make an Inheritance Act application?
15.2.3 What court should the application be made in?
15.2.4 What is meant by reasonable financial provision?
15.2.5 How do the courts determine whether to make an award?
15.2.6 Time limits for making an application
15.2.7 What orders can the court make?
15.2.8 What property is available for an order?
15.3 Inheritance Act process
15.4 Inheritance Act case law
15.5 Further reading
16 Remedies
16.1 Duties of solicitors and will-drafters
16.1.1 Duty to act within a reasonable time
16.1.2 Duty to ensure the will reflects the client’s instructions
16.1.3 Duty to give advice on execution
16.1.4 Duty to provide information
16.2 Non-contentious probate
16.3 Contentious probate – challenges to a will
16.4 Contentious probate – administration claims
16.4.1 PR or trustee?
16.4.2 Right to seek guidance from the court
16.4.3 Removing and replacing a PR under the AJA 1985, s 50 or the inherent jurisdiction
16.4.4 Devastavit
16.5 Defences available to the PR
16.5.1 Section 27 notice
16.5.2 Benjamin orders
16.5.3 Missing beneficiary insurance
16.5.4 Trustee Act 1925, s 61
16.5.5 Trustee Act 1925, s 62
16.5.6 Limitation Act 1980, s 22
16.5.7 Limitation Act 1980, s 21(3)
16.5.8 Administration complete
16.6 Executor de son tort
16.7 Criminal liability for fraud
16.8 Further reading
Index
TABLE OF CASES
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
R
S
T
U
V
W
Y
TABLE OF LEGISLATION
Administration of Estates Act 1925 2, 3, 7, 9, 136, 231, 237
s 1 202
s 5 151
s 7 156
s 7(3) 157
s 9 201
s 9(1)–(3) 190
s 25 196, 206, 226
s 25(a) 206
s 25(b) 206, 209
s 25(c) 206
s 27(1) 200
s 27(2) 199
s 28 272
s 32(1) 214
s 33 205, 232
s 33(1) 134, 231
s 33(2) 134, 231, 232, 233, 234
s 33(7) 232
s 34(3) 121, 219, 221, 232, 233, 234, 235
s 35(1) 221
s 36 205, 228
s 36(1) 227
s 36(4) 228
s 36(6) 228
s 37 199, 200
s 39 205
s 41 138, 139
s 44 227, 268
s 46 133, 134, 135, 138, 139, 140, 141, 144, 145, 152, 193
s 46(1)(i)(1) 136
s 46(1)(i)(2) 136
s 46(1)(i)(2)(A) 136
s 46(1)(i)(2)(B), (C) 137
s 46(1)(ii) 140
s 46(1)(iii), (iv) 143
s 46(1)(v) 143, 144
s 46(1)(vi) 144
s 46(2A) 139, 155
s 46A 126
s 47 140
s 47(1)(iv) 141
s 49 134
s 55 199
s 55(1)(x) 136
Sch 1, Pt II 121, 219, 232, 233, 234, 235
Sch 1A 137
Administration of Estates Act 1925 (Fixed Net Sum) Order 2020 136, 137
Administration of Estates Act 1971
s 10(2) 226
Administration of Estates (Small Payments) Act 1965 185
Administration of Insolvent Estates of Deceased Persons Order 1986 121, 222, 223
Administration of Justice Act 1982 7, 40, 42, 111
s 20 77, 78, 81, 97
s 20(1) 78, 79
s 20(2), (3) 78
s 21 77, 82, 84, 85, 89, 90, 95, 97, 231
s 21(1)(b) 96, 97
s 21(1)(c) 95
s 21(2) 96
s 22 93
Administration of Justice Act 1985
s 48 265
s 50 149, 264, 265
s 50(1) 265
s 50(4) 265
Adoption and Children Act 2002
s 67 88, 141
s 67(6)(a) 88
Births and Deaths Registration Act 1953 143
s 16 184
s 17 184
Civil Partnership Act 2004
s 49 135
s 50 135
Civil Procedure Rules 1998
r 57.7(1) 188, 263
r 57.15 243
Companies Act 2006
s 385 172
Contracts (Rights of Third Parties) Act 1999 203
Coroners and Justice Act 2009 184
Court of Probate Act 1857 8, 9
Courts and Legal Services Act 1990
s 58A(6) 251
Enterprise Act 2002 225
Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 126
European Convention on Human Rights
Article 8 140
Article 14 140
Family Law Reform Act 1987
s 18 141
s 18(2) 143
s 18(2ZA) 143
s 19 88
Forfeiture Act 1982 114, 124, 126, 254
s 1 124
s 2 124
s 2(2) 124
s 2(3) 124, 254
s 3 254
s 5 124
Fraud Act 2006
s 1–4 37, 272
Friendly Societies Act 1974
s 59 224
Human Fertilisation and Embryology Act 1990 88, 141
Human Fertilisation and Embryology Act 2008 88, 141
s 33 88, 141
Income Tax Act 2007 163
s 6 163
s 10 163
s 491 165
Income Tax (Earnings and Pensions) Act 2003
s 62 163
Income Tax (Trading and Other Income) Act 2005
s 649ff 165
Inheritance and Trustees’ Powers Act 2014 136, 137
Inheritance (Family Provision) Act 1938 239
Inheritance (Provision for Family and Dependants) Act 1975 72, 96, 140, 144, 188, 239, 241, 253, 254
s 1 242, 249
s 1(1)(a)–(e) 242
s 1(1A) 243, 244
s 1(1B) 243, 244
s 1(2) 245
s 1(2)(a)–(b) 244
s 1(3) 242
s 2 249, 250, 251
s 2(1) 250
s 3 245, 246, 247, 249, 257
s 3(1) 246
s 3(1)(a), (b) 246
s 3(1)(c) 246, 256
s 3(1)(d)–(g) 246
s 3(2) 246, 247
s 3(2A) 246
s 3(3)–(6) 247
s 4 248, 249
s 5 249
s 8 251
s 9 252
s 9(1A) 252
s 20 248
s 25(1) 251
Inheritance Tax Act 1984 169
s 7 176
s 8A 177
s 8D 176
s 18 172
s 19 173
s 20 173
s 21 173
s 22 174
s 22(2) 174
s 23 174
s 24 172
s 25 172
s 104 172
s 116 172
s 154 172
s 160 170, 171
s 161 170, 171
s 162 171
s 172 171
Sch 1 176
Sch 1A 176
Sch 3 172
Insolvency Act 1986
s 231 121
s 264 222
s 264(1)(c) 224
ss 265–271 222
s 276 224
s 285(4) 224
s 322 223
s 328(1B) 225
s 328(3) 225
s 328(4), (5) 226
s 329 226
s 339 223
s 341 223
s 342 223
s 382 223
s 386 225
s 421A 223
s 421A(3) 223
ss 423–425 215
Sch 6 224
Sch 6, paras 15BA, 15BB 225
Sch 6, para 15D 225
Insolvency Proceedings (Monetary Limits) Order 1986
art 4 225
Intestates’ Estates Act 1952 138
Sch 2, para 1 138
Sch 2, para 1(2) 138
Sch 2, para 2 138
Sch 2, para 3(2) 138
Judgments Act 1938
s 17 226
Law of Property Act 1925 9
s 1 229
s 1(1) 138
s 1(6) 16, 118
s 36(2) 119
s 53(1) 60
s 177 111
s 184 86
s 204(1) 199
s 205 200
Law of Property (Miscellaneous Provisions) Act 1989
s 2(1) 129
Law Reform (Miscellaneous Provisions) Act 1934
s 1 202
Law Reform (Succession) Act 1995 116
s 1 139
Limitation Act 1980
s 5 266
s 6 266
s 21(3) 270
s 22 270
s 22(1), (2) 270
Matrimonial Causes Act 1973
s 11 110, 135
s 12 110, 135
Mental Capacity Act 2005 18, 30, 31, 32, 38, 120, 150, 193, 194
s 1(2) 31
s 2 30
s 3 30, 31
s 3(4) 31, 32
Non-Contentious Probate Fees Order 2004
Sch 1, para 1 197
Non-Contentious Probate Rules 1987 7, 44, 157
r 4 192
r 5 193
r 5ZA 193
r 6 192
r 8
r 10 45
r 12 196
r 12(1) 44
r 12(2)