FAILURE OF GIFTS
When the PRs have decided what property is capable of passing under the will, they must apply the terms of the
will to the property.
If a gift fails, it will fall into the residue and the residuary beneficiary will be entitled to it
If there is no residuary beneficiary, use intestacy rules
Gift will fail if the property isn’t owned by the testator at death/there is a change in the
ADEMPTION substance of the gift
usually occurs Gifts changed in nature (shares in X, but company taken over by Y) will stand (must
because the be change in substance for gift to adeem)
property has been Property that has been replaced will fail, but check circumstances (“my
sold, given away or
destroyed car/watch” but it is a different one to the one with which the will was made) -
presumption in such a case is that the testator meant only to dispose of the particular
*examples on pg 368 Legal asset he owned at the date of the will so that the gift is adeemed
Foundations
Property can increase/decrease (“my jewellery”); gift will include all items matching
that description (no ademption)
Where the beneficiary predeceased the testator/fails to satisfy contingent clause of
surviving by X years, the gift will fail and it falls into residue of the estate (even if
LAPSE issues)
Unless there is a ‘substitutional gift’ (whether surviving beneficiaries take lapsed
gift)
If order of death cannot be proved, eldest deemed to have died first (s184 LPA 1925)
Class gift (to all children in equal shares) will not lapse until they all predecease the
testator
BENEFICIARY s.15 Wills Act 1837 - a gift by will fails if the beneficiary, his spouse or civil partner
WITNESSES WILL witnesses the will.
Post-divorce will is still valid, but if the spouse treated to have died on divorce date
DIVORCE so gift also fails
s.18A Wills Act 1837 - ‘any property which, or an interest in which, is devised or
bequeathed to the former spouse or civil partner shall pass as if the former spouse or
civil partner had died’
DISCLAIMER If the beneficiary refuses (‘disclaims’) the gift, it will fall into residue
Cannot disclaim the gift if they have already had some benefit from it
FORFEITURE Can’t inherit from someone who has been convicted of unlawfully killing
If manslaughter, apply within 3 months for relief from forfeiture
, INTESTACY
intestacy rules contained in the AEA 1925 apply to decide who is entitled to an
OVERVIEW individual’s property when he dies without disposing of it by will.
intestacy rules impose a trust over all the property (real and personal) in respect of
which a person dies intestate (AEA 1925, s 33).
the PRs must pay the funeral, testamentary and administration expenses, and any debts
of the deceased.
the balance remaining (after setting aside a fund to meet any pecuniary legacies left by
the deceased in the will) is the ‘residuary estate’ to be shared among the family under
the rules of distribution set out in s 46 of the AEA 1925.
A cohabitee has no rights under the intestacy rules.
SURVIVED BY SPOUSE/CIVIL PARTNER & ISSUE
ENTITLEMENT spouse or civil partner receives personal chattels absolutely irrespective of living
arrangements (personal chattels defined in s55(1)(x) AEA 1925)
Statutory legacy of £250,000 free of tax and costs plus interest from death until
payment
Remainder is divided into two funds:
½ for spouse absolutely
½ for issue(s) on statutory trust
The intestate’s spouse or civil partner must survive the intestate for 28 days in order to
inherit.
SURVIVED BY SPOUSE & NO ISSUE
Whole estate to spouse absolutely
The intestate’s spouse or civil partner must survive the intestate for 28 days in order to
inherit.
INTESTATE HAS NO SURVIVING SPOUSE/CIVIL PARTNER
The ‘residuary estate’ is divided between the relatives in the highest category in the list
below:
a. issue on the ‘statutory trusts’, but if none,
b. parents, equally if both alive, but if none,
c. brothers and sisters of the whole blood on the ‘statutory trusts’, but if none,
d. brothers and sisters of the half blood on the ‘statutory trusts’, but if none,
e. grandparents, equally if more than one, but if none,
f. uncles and aunts of the whole blood on the ‘statutory trusts’, but if none,
g. uncles and aunts of the half blood on the ‘statutory trusts’, but if none,
h. the Crown, Duchy of Lancaster, or Duke of Cornwall (bona vacantia)
ADOPTED & ILLEGITIMATE CHILDREN
Adopted children are treated for intestacy purposes as the children of their adoptive
parents and not of their natural parents
If a person who was adopted dies intestate without spouse or issue, his estate will be
distributed between the closest relatives in the adoptive family
An adopted child may also inherit on the intestacy of any member of his adoptive family.
PRs are to pay out in the following order:
,ORDER OF 1) Reasonable funeral expenses and administration expenses and IHT
PAYMENTS Money may need to be raised for this. Factors: do not sell specific legacies / think of
beneficiaries’ wishes / consider tax impact or selling asset (CGT) and availability of
exemptions
2) Debts and liabilities
3) [Any valid legacies if there is a will]
4) Distribute the residuary estate according to the order in Part IV AEA:
a) Spouse/civil partner
Person to whom deceased was married to at the time of death
As from 01/01/96, a spouse must survive the intestate for 28 days or they are
treated as not having outlived the deceased
b) Issue on statutory trusts
Children, grandchildren, great-grandchildren, adopted children, illegitimate
children
Not step-children (unless adopted), but note I(PFD)A 1975
c) Parents absolutely, equally
d) Siblings of the whole blood (same parents) on statutory basis
e) Siblings of the half-blood on statutory trusts
f) Grandparents, equally
g) Uncles and aunts of the whole blood on statutory trusts
h) Uncles and aunts of the half-blood on statutory trusts
i) The Crown (not the doctrine of bona vacantia that allows Crown to provide for estate
dependants)
S47 AEA 1925 determines the terms on which the beneficiaries take under intestacy, as
STATUTORY follows:
TRUSTS Primary beneficiaries are the children of the intestate who are living at the intestate’s
death
Interests of the children are contingent upon reaching 18 or marrying under that age.
Any child who fulfils the contingency at the intestate’s death takes a vested interest.
If any child of the intestate predeceased the intestate, any children of the deceased
child who are living at the intestate’s death take their deceased parent’s share equally,
contingently upon attaining 18 or earlier marriage
If children or issues survive the intestate but die without attaining a vested interest, their
interest normally fails and the estate is distributed as if they had never existed
However, s.3 Estates of the Deceased Persons (Forfeiture Rule and Law of
Succession) Act 2011 amended s.47 AEA 1925 so that it now provides that if they die
without attaining a vested interest but leaving issue, they will be treated as having
predeceased the intestate so that they can be replaced by their own issue
If it forms part of the estate passing on intestacy, the surviving spouse can ask PRs for it
MARITAL to appropriate the matrimonial home in full or partial satisfaction of any absolute interest
HOME in the estate (Intestates’ Estates Act 1952, s5).
If property forms more than entitlement, they pay the difference (‘equality money’) in
order to be given it.
The election must be made in writing to the PRs within 12 months of the grant of
representation.
BONA Where an estate passes bona vacantia, the Crown, Duchy of Lancaster or Duke of Cornwall
VACANTIA has a discretion to provide for dependants of the intestate, or for other persons for whom the
intestate might reasonably have been expected to make provision.
, INHERITANCE (PROVISION FOR FAMILY DEPENDENTS) ACT 1975
The Inheritance (Provision for Family and Dependants) Act 1975
OVERVIEW (I(PFD)A 1975) allows certain categories of people who may be aggrieved
because they have been left out of a will, or are not inheriting on an
intestacy, to apply for a benefit from the estate following the testator’s or
intestate’s death.
The I(PFD)A 1975 may also be used by a person who has received some
benefit under the will or intestacy but is dissatisfied with the amount of the
inheritance.
I(PFD)A 1975 applies only where the deceased died domiciled in England
and Wales
The PRs will be personally liable where an applicant under the I(PFD)A
1975 successfully obtains an order for ‘reasonable financial provision’ from
the estate.
s1(1) I(PFD)A 1975
WHO CAN CLAIM (a) Spouse/civil partner
(b) Former spouse/civil partner provided they have not remarried
(c) Child of the deceased (age irrelevant)
(d) any person treated by the deceased as a child of the family (e.g. step
child or child of cohabitee)
(e) any person being maintained by deceased at the time of death s.1(3)
I(PFD)A 1975
(f) any person who was living in the same household as the
husband/wife/civil partner of deceased, for 2 years ending immediately
before the date when the deceased died
s4 I(PFD)A 1975 any application must be brought within 6 months of the
TIMING date of issue of grant of representation (not death)
Court has a discretion to extend the time limit
In the case of deaths on or after 1 October 2014 (the date on which the
Inheritance and Trustees’ Powers Act 2014 came into force) it is possible
to make an application before the grant is issued.
Simply must prove that the provisions of the will/intestacy are insufficient to
WHAT TO PROVE make “reasonable financial provision” for the applicant
(a) ‘the surviving spouse standard’, which allows a surviving spouse or civil
partner such financial provision as is reasonable in all the circumstances
‘whether or not that provision is required for his or her maintenance’ (s 1(2)(a));
and
(b) ‘the ordinary standard’, which applies to all other categories of applicant
and allows ‘such financial provision as it would be reasonable in all the
circumstances ... for the applicant to receive for his maintenance’ (s 1(2)(b))
Common Guidelines (considered for every applicant) s3(1) I(PFD)A 1975
FACTORS COURT the financial resources and needs of the applicant, other applicants and
CONSIDER beneficiaries of the estate now and in the foreseeable future;
the deceased’s moral obligations towards any applicant or beneficiary;
the size and nature of the estate;
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