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Wills and Administration of Trusts - Variation of wills and the intestacy rules
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Used to achieve a distinction level grade of 84% on the LPC course. overview of the variation of wills and the intestacy rules.
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Wills and Administration – Variation of the will/intestacy provisions.Property passing under will/intestacy.
Intestacy rules will apply when:
1. Where deceased has died totally intestate it may be that they have:
never made a will or
will is not valid.
2. Partial intestacy
where the will is valid but does not deal with the whole of the deceased estate,
either no gift of residue or gift of residue has failed
beneficiary has predeceased testator and there is no effective substitutional gift.
Administration of Estates Act.
S 33(1) provides that the personal representatives hold the intestate`s estate not disposed
of by a will on trust with a power to sell.
• They must pay funeral, testamentary and administration expenses, debts and other
liabilities from the estate.
• The residuary estate is then shared amongst those entitled according to the
intestacy rules
Entitlement.
First person to consider is the surviving spouse or civil partner. They may take the entire
state.
If not, the rules set out the order of entitlement depending on the category of blood
relation.
Once you’ve found someone in a class – look no further – closest relative in terms of the
rules is the one who inherits.
Inheritance (provision for family and dependants) act 1975.
Allows for claims to vary the terms of a will or the application of the intestacy rules.
Basis is always that the will or rules does not make ‘reasonable financial provision’ for the
applicant.
Any statement left by the deceased as to why they made no provision, or the particular
provision, should be preserved by the relevant individuals as they may be relevant and if so,
the court will take them into account.
Must be filed within 6 months of the grant of representation (i.e. grant of probate)
Grounds for an application:
Apply within 6 months.
Fall within one of the categories
Satisfy the court that reasonable financial provision has not been made for them.
The court can make an order from the deceased’s net estate – once any tax and liabilities,
funeral etc has been paid.
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