What transaction constitutes an effective inter vivos gift?
Where the donor intends to make a gift of property and transfers the ownership of the property to the donee
When does the ownership of property pass to the donee for common law and equity?
Common law - don’t pass unless formalities governing its transfer are satisfied in detail
Equity - Ownership passes once a donor has done everything in their power to divest themselves of the property
What is an imperfect gift?
A gift where a donor intends to make a gift but fails to transfer the ownership of the property - donee an’t benefit from gift
What could a deceased person’s estate comprise?
- All of the property of which the deceased was legally and beneficially the sole owner
- Deceased’s undivided share of property owner under tenancy in common
- Where the deceased was a trustee of property (trust property doesn’t form part of the estate)
Describe what happens to the property of a deceased person
First passes into ownership of their personal representatives
Then (once finished administration of estate) the ownership passes to the legatees
Who is a personal representative? and name the 2 type of representatives
Generic name given to a person responsible for administering a deceased person’s estate
2 types:
• Executores
• Administrators
Who is an executor?
A personal representative appointed under the deceased’s Will to carry out the terms of a will
No limit of number of executors
What is an administrator?
A personal representative appointed by the court because the deceased dies without having made a valid will or the will doesn’t doesn’t appoint an executor
Where do executors and administrators derive their authority from?
Executors - from the Will
Administrators - from the court
What are the primary duties of personal representatives?
- Obtain probate
- Ascertain the assets & liabilities of the estate
- Collect in the assets of the estate that have been lent / hired out
- Pay the expenses
- Distribute the estate
What is a testamentary disposition?
The generic term for instrument in writing by which persons dispose of their possession after death (Eg. Will)
What is a testator?
Someone who dies with a will - they are said to have died testate
What are the key requirements for wills?
- Must be in writing (on any material)
- Must be signed by the testator
- Testator’s signature must be witnessed by two persons who are present together (witness can’t benefit from will)
- Testator must be Sui juris (have the capacity to make will)
- The testator must intend the will to be operative as a testamentary disposition
Name the ways in which a will can be revoked
- By executing a later will / codicil which expressly revokes all former wills
- By executing a later will / codicil which impliedly revokes an earlier will
- By marriage / forming civil partnership (divorce doesn’t revoke a will)
- By physical destruction
- By letter signed by testator & witnessed by 2 people
Who is a legatee and what is a legacy? (In a will)
Legatee: The person to whom the deceased’s property is distributed
Legacy: the gift to the legatee
What types of legacies are there in wills?
- Specific legacy
- General legacy
- Pecuniary legacy - gift of money
- Residual legacy
What are the advantages of writing a will?
- Deceased can choose personal representatives
- Executors can be appointed as trusteed
- Executors can act before probate
- Guardians of minor children can be appointed
- Executors & trustees can be given extended powers
- A will can contain special requirements
- The estate can be distributed as the deceased would wish
What is intestacy?
When a person dies without leaving a valid will - person is said to have died intestate
Who inherits the deceased’s property is they died intestate?
Depends upon which family member survive the deceased - most of the time spouse - not inherited if can’t survive the deceased by 28 days
If child and spouse survive - usually half and half
If 2 individuals die at the same time - who is said to have dies first?
The eldest
What is a daily provision claim?
A claim made whereby a family member claim the deceased hasn’t provided with reasonable financial provision - the court considers all circumstances of the case to make a judgement
