Succession Law Key Concepts
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Questions and Answers

What is the definition of the 'Mackintosh Report'?

“When a man dies without a will the law should try to provide so far as possible for the distribution of his estate in the manner he would most likely have given effect to himself if he had made a will

What is the central point of the 'Stair' definition?

Succession law isn't about forcing people to pass on their property.

What is the key takeaway from the 'Nichols' definition?

It's impossible to create simple rules that always lead to a fair outcome.

What is the main critique of the 'Reid' proposals?

<p>The proposals are based on broad principles that lack concrete details.</p> Signup and view all the answers

What is the key factor influencing the recommended spouse's share in 'New Zealand spouses'?

<p>The existence of stepchildren.</p> Signup and view all the answers

What is the definition of 'Family Law (Scotland) Act 2006 s25(1)(a)'?

<p>&quot;a man and a woman who are (or were) living together as if they were husband and wife; or two persons of the same sex who are (or were) living together as if they were civil partners&quot;</p> Signup and view all the answers

What powers does the court have under 'Family Law (Scotland) Act 2006 s29(2)'?

<p>The court can order a payment of a capital sum or transfer of property from the deceased's estate to a cohabitant.</p> Signup and view all the answers

What is one of the considerations that the court must take into account under 'Family Law (Scotland) Act 2006 s29(3)(a)'?

<p>The size and nature of the deceased's estate.</p> Signup and view all the answers

What is the limitation placed on cohabitant's inheritance according to 'Family Law (Scotland) Act 2006 s29(4)'?

<p>A cohabitant cannot inherit more than a spouse.</p> Signup and view all the answers

What are the issues with the law for cohabitants, as outlined in the definition?

<p>The definition is vague.</p> Signup and view all the answers

What was the outcome in 'Windram 2009'?

<p>The entire estate went to the children; the cohabitant, who had given up work to care for them, received nothing.</p> Signup and view all the answers

What was the key outcome of the case 'Whigham v Owen 2013'?

<p>The cohabitants, after 26 years together, broke up.</p> Signup and view all the answers

What is the concern highlighted by 'Chebotareva v King's Excrx 2008'?

<p>Forum shopping - seeking a favorable legal jurisdiction for a case.</p> Signup and view all the answers

What important point was made in the 'Kerr v Mangan 2015' case?

<p>Section 29 of the Family Law (Scotland) Act 2006 is a significant reform to the law of succession in Scotland.</p> Signup and view all the answers

What percentage of the population do cohabitants represent?

<p>17.9%</p> Signup and view all the answers

What percentage of respondents to the 2015 consultation wanted the repeal of section 29?

<p>70%</p> Signup and view all the answers

What does Christandl argue is important regarding the law of intestacy?

<p>It should ensure fair outcomes for cohabitants, reflecting the way they have arranged their affairs in life.</p> Signup and view all the answers

Which of the following are arguments against cohabitation rights? (Select all that apply)

<p>Deceased could've made a will.</p> Signup and view all the answers

There is a clear consensus on how to reform the law for cohabitants.

<p>False</p> Signup and view all the answers

What is the challenge facing the courts regarding the laws for cohabitants?

<p>They must balance the conflicting interests of family members without clear guidance on how to weigh their needs.</p> Signup and view all the answers

What were SLC 2009 recommendations for cohabitant inheritance?

<p>A right to inheritance in both testate (with a will) and intestate (without a will) succession.</p> Signup and view all the answers

Which of the following are factors considered in the first stage of the two-stage test for cohabitation status? (Select all that apply)

<p>Having children.</p> Signup and view all the answers

Which of the following are factors considered in the second stage of the two-stage test for cohabitation status? (Select all that apply)

<p>Nature of interdependence.</p> Signup and view all the answers

What is proposed by the Scottish government regarding cohabitant inheritance rights?

<p>Cohabitants who appear to be married and have a financially interdependent relationship to which they have both contributed should have the same rights as spouses.</p> Signup and view all the answers

How does South Australia treat cohabitant inheritance?

<p>Cohabitants meeting certain conditions can apply to be a 'putative spouse,' receiving the same rights as a spouse.</p> Signup and view all the answers

What is the proposed recommendation for cohabitants in New South Wales?

<p>A cohabitant who has been with the deceased for at least two years should receive the deceased's spouse's share, excluding the spouse.</p> Signup and view all the answers

What is the legal status of cohabitants in British Columbia?

<p>Cohabitants living together in a marriage-like relationship for two years are considered spouses under the law.</p> Signup and view all the answers

What is the proposed definition of 'cohabitant' according to the Law Commission?

<p>A person who, immediately before the deceased's death, was living with them as a couple in a shared household.</p> Signup and view all the answers

What is the main argument against giving stepchildren inheritance rights?

<p>It's a bad social policy.</p> Signup and view all the answers

What is the core concern highlighted in the Scottish Government consultation 2019 regarding inheritance?

<p>The law often defines 'family' in a way that doesn't reflect the people the deceased considered to be their family.</p> Signup and view all the answers

What is the definition of 'Inheritance (Provision for Family and Dependents) Act 1975 s1(d)'?

<p>“any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of parent, was treated by the deceased as a child of the family”</p> Signup and view all the answers

What is the provision within the New Zealand Family Protection Act 1955 s3(d) regarding stepchildren?

<p>Stepchildren who were being maintained or were legally entitled to be maintained by the deceased can claim inheritance.</p> Signup and view all the answers

What is the definition of 'eligible person' under Victoria Administration and Probate Act 1958 ss 90 - 91?

<p>Eligible persons include stepchildren who are under 18, in full-time education, or disabled.</p> Signup and view all the answers

What is the definition of 'eligible person' under New South Wales Succession Act 2006 s57?

<p>An eligible person is someone being maintained or in the same household as the deceased.</p> Signup and view all the answers

What is the concept of 'Langbein harmless errors'?

<p>Formal mistakes in legal documents do not necessarily mean the intent of the law has been disregarded.</p> Signup and view all the answers

What is the key point made by the SLC Report on Requirements of Writing 1988?

<p>Forgery is not just a civil wrong but a crime.</p> Signup and view all the answers

What are the arguments made by the Law Commission regarding dispensing powers? (Select all that apply)

<p>Judicial control mitigates the risks of dispensing powers.</p> Signup and view all the answers

What is the inconsistency highlighted regarding formalities in law?

<p>It's not possible to transfer land without a signature, while other legal documents may have different requirements.</p> Signup and view all the answers

What suggestions does the New Zealand Wills Act 2007 make regarding dispensing powers? (Select all that apply)

<p>Focus on testamentary intentions.</p> Signup and view all the answers

How does the Queensland dispensing power approach the review of evidence?

<p>It casts a wide net to analyze evidence, ultimately determining if the intention was informal or if the deceased should be considered to have died intestate.</p> Signup and view all the answers

In what situations does the Uniform Probate Code's dispensing power apply?

<p>When the testator misunderstands the requirements for a valid will or intends to make a change to their will.</p> Signup and view all the answers

What is the perceived benefit of the Uniform Probate Code's dispensing power?

<p>It effectively prevents unnecessary legal disputes.</p> Signup and view all the answers

What does 'Canada Uniform Wills Act 2015 s10(2)' cover?

<p>Military wills</p> Signup and view all the answers

What does 'Succession (Scotland) Act 2016 s3(2)' refer to?

<p>The court can order rectification of a will to ensure it reflects the testator's intentions.</p> Signup and view all the answers

What possibility was considered by the court in 'Finnie v McClure'?

<p>The court considered allowing implied instruction.</p> Signup and view all the answers

What is 'constructive rectification'?

<p>Interpreting a will based on the testator's assumed intentions, rather than the literal wording.</p> Signup and view all the answers

What is the key principle outlined in the 'Hudson v St John 1977' case regarding rectification?

<p>Courts can rectify a mistake in a document if all parties had the same intention and the written document fails to reflect that intention.</p> Signup and view all the answers

What is Langbein's approach to interpreting wills in the US?

<p>Courts interpret wills constructively without utilizing rectification.</p> Signup and view all the answers

What was the important outcome of the 'Re N 1950 (Victoria)' case?

<p>The court did not remove words from the will but made an order to rectify the meaning.</p> Signup and view all the answers

What are the dates for cases 'Hoffman (decd)' and 'O'Grady (decd)'?

<p>'Hoffman (decd)' - 2016, 'O'Grady (decd)' - 2017</p> Signup and view all the answers

What does' Administration of Justice Act 1982 s20(1)' refer to?

<p>It allows the court to rectify a will when it fails to reflect the testator's intentions due to clerical errors or misunderstandings.</p> Signup and view all the answers

How did Lord Hodge express the potential for rectification in Scots law in 'Marley v Rawlings 2014'?

<p>When the testator's intentions and a solicitor's mistake are evident, Scots law could utilize partial reduction and declarator to correct errors or potentially implement rectification.</p> Signup and view all the answers

What are the two circumstances that the New South Wales Succession Act 2006 s27 identifies for will rectification?

<p>When a clerical error is made or the will does not accurately reflect the testator's instructions.</p> Signup and view all the answers

What does the Australian Capital Territory Wills Act 1968 s12 authorize?

<p>The court can rectify a will if it's satisfied that the existing will does not reflect the testator's intentions.</p> Signup and view all the answers

What is the core principle stated in the case' 'Calton v Thomson' regarding interpreting a will?

<p>The court should primarily focus on the testator's intentions, which can be discovered or inferred from the will.</p> Signup and view all the answers

What does the case 'Hay v Duthie's Trs' suggest about interpreting wills?

<p>A court today might rule differently than it did historically.</p> Signup and view all the answers

What perspective on will interpretation did Lord Dunedin present in 'Nasmyths Trs v NSPCC 1915'?

<p>He expressed moral concern about the potential for the testator's will to be inconsistent with what they might have truly intended.</p> Signup and view all the answers

What is the 'primary duty' of a court interpreting wills as stated in the case 'Young v Robertson'?

<p>To give each word its natural and ordinary meaning when applicable.</p> Signup and view all the answers

What are the three ways a court can look at the language in a will?

<p>Legal, ordinary, and individual.</p> Signup and view all the answers

What are the two types of conditions in wills?

<p>Suspensive and resolutive.</p> Signup and view all the answers

What is the concept of the 'dead hand'?

<p>The deceased attempting to dictate actions of the living through their will.</p> Signup and view all the answers

What is the key point made in 'Blathwayt v Crawley 1976' regarding discrimination?

<p>Discrimination is not the same as choice, it operates on a broader and less personal level.</p> Signup and view all the answers

What is the requirement for a conditional clause to be valid in England & Wales?

<p>There needs to be a 'gift over' - an alternative beneficiary if the condition is not met.</p> Signup and view all the answers

What was the ruling in the 'Re Fentem 1950' case?

<p>A restraint on marriage was ruled to be valid.</p> Signup and view all the answers

In what year did the 'Leong v Chye' case occur?

<p>1955</p> Signup and view all the answers

What was the significant action taken by the cohabitant in the 'Lewis v Warner 2018' case?

<p>The cohabitant offered to buy the house.</p> Signup and view all the answers

What is the principle of 'Forfeiture Act 1982 s1(1) in relation to inheritance?

<p>Someone who unlawfully killed another person should not benefit from their crime.</p> Signup and view all the answers

What are the factors that 'Forfeiture Act 1982 s2(2)' allows the court to consider when assessing a case?

<p>The offender's conduct, the deceased's conduct, and any other relevant circumstances.</p> Signup and view all the answers

What is the timeframe within 'Succession (Scotland) Act 2016 s12(3)(a)' for inheritance eligibility?

<p>A person must predecease the testator and the time limit is 6 months.</p> Signup and view all the answers

Study Notes

Succession Law - Key Concepts

  • Mackintosh Report: Suggests that, when someone dies without a will, the law should distribute the estate as the deceased would have likely wanted.

  • Stair: Succession law is not about forcing the passing of property.

  • Nichols: Simple rules for a just result in succession are not possible.

  • Reid: Succession proposals often lack specifics and rely on high-level principles.

  • New Zealand Spouses: The recommended spouse's share depends on stepchildren.

  • Family Law (Scotland) Act 2006 s25(1)(a): Defines cohabitants as those living together like a married couple, or two same-sex civil partners.

  • Family Law (Scotland) Act 2006 s29(2): The court can order capital or property transfer from the deceased's estate.

  • Family Law (Scotland) Act 2006 s29(3)(a): The court considers the size and nature of the deceased's estate.

  • Family Law (Scotland) Act 2006 s29(4): A cohabitant's share cannot exceed that of a spouse.

  • Cohabitation Law Issues: The definition is unclear, guidance for court decisions is lacking, and the court needs to balance competing interests without specific criteria.

  • Windram (2009): A long-term cohabitant who gave up work was awarded the entire estate.

  • Whigham v Owen (2013): A 26-year cohabiting relationship ended.

  • Chebotareva v King's Excrx (2008): "Forum shopping"

  • Kerr v Mangan (2015): A 22-year cohabiting relationship - Court confirmed succession rights.

  • Cohabitant Percentage: Cohabitants represent the second-largest family type (17.9%).

  • 2015 Consultation Repeal: 70% of respondents sought to repeal section 29.

  • Christandl: Intestacy law should reflect the deceased's life arrangements.

  • Arguments Against Cohabitation Rights: Concerns about wills, devaluation of marriage, potential delays, and the deceased's right to choose.

  • Consensus on Cohabitation Reform: No unifying viewpoint or agreement exists.

  • Court Difficulty: The court struggles to balance conflicting family interests.

  • Scottish Law Commission (SLC) 2009 Recommendation: Cohabitants have rights in both testate and intestate successions.

  • 2 Stage Test Stage 1 Factors: Living together, relationship stability, presence of children, perceived marriage-like relationship.

  • 2 Stage Test Stage 2 Factors: Duration, interdependence, contributions.

  • Scottish Government Proposal: Cohabitants with a financially interdependent relationship, similar to a married couple, should have the same rights as spouses.

  • Australian Jurisdictions (Cohabitants): Differing rules for cohabiting couples exist, varying from shared spousal share to potential exclusion of spouses after a set period.

  • Law Commission Proposals (Cohabitants): Cohabitant definition is those living together as a couple in the same household.

  • Norrie: Providing rights to stepchildren is a poor social policy.

  • Scottish Government Consultation (2019): Intestacy law defines a deceased person's family, so those considered family inherit.

  • Inheritance (Provision for Family and Dependents) Act 1975 s1(d): Criteria for applicants for family provision (including those treated as children).

  • New Zealand Family Protection Act 1955 s3(d): Stepchildren receive claims if maintained or legally entitled.

  • Victoria Administration and Probate Act: Eligibility for stepchildren (under 18, in education, or disabled)

  • New South Wales Succession Act 2006 s57: Eligibility for stepchildren.

  • Langbein harmless errors principle: Formalities do not eliminate intent if there's a mistake.

  • SLC Report 1988: Forgery of testamentary documents is criminal.

  • Dispensing Power: Judicial evaluation of evidence provides better protection than arbitrary formalities.

  • Consistency of Formalities: Land transfer requires signatures.

  • New Zealand Wills Act 2007 Dispensing powers: Emphasis on the deceased's precise intent.

  • Queensland Dispensing Power: Wide evidence base for determining testamentary intentions.

  • Uniform Probate Code Dispensing: Correction of testator errors or intentions.

  • Canada Uniform Wills Act 2015 s10(2): Military wills.

  • Succession (Scotland) Act 2016 s3(2): Court can rectify wills to match intentions.

  • Finnie v McClure: Implied instructions can be considered by the court.

  • Constructive Rectification: Court interprets documents based on testator intentions.

  • Hudson v St John (1977): Court willingness to rectify mistakes when intent is clear.

  • Langbein US: Constructive interpretation without relying on rectification.

  • Re N (1950): Court intervention, but no document change.

  • Hoffman (2016) & O'Grady (2017): South Australian specific cases.

  • Administration of Justice Act 1982 s20(1): Clerical or instruction errors in wills.

  • Marley v Rawlings (2014 Lord Hodge): Scots law allows for rectifying issues in wills.

  • New South Wales Succession Act 2006 s27: Court ability to rectify flawed testamentary documents.

  • Australian Capital Territory Wills Act 1968 s12: Court can rectify wills with errors that deviate from testator intentions.

  • Calton v Thomson: Court's focus on the testator's intentions.

  • Hay v Duthie's Trs: Modern court decisions differ from the past.

  • Nasmyths Trs v NSPCC (1915 Lord Dunedin): Court's moral consideration of a will.

  • Young v Robertson: Importance of natural meaning for words in a will.

  • Baron- Interpretation of Language: Language is interpreted legally, ordinarily, and individually.

  • Types of Conditions: Suspensive and resolutive conditions exist.

  • Dead Hand: Control by the deceased over the living.

  • Blathwayt v Crawley (1976): Focus on testamentary disposition freedom and the avoidance of restrictions.

  • England & Wales in terrorem: A valid condition (a disinheritance provision) requires a gift over.

  • Re Fentem (1950): Restraint on marriage was deemed valid.

  • Leong v Chye (1955): Disinheritance case.

  • Nathan v Leonard (2003): Uncertainty in a no-contest clause makes it invalid.

  • Bellinger v Nuytten Estate (2003): Canadian case on a no-contest clause.

  • Family Law (Scotland) Act 1985 s1(4): Provision for payment from executor.

  • Arguments for Protection from Disinheritance: Family values, dispute prevention.

  • Arguments Against Protection from Disinheritance: Respect for deceased intent, personal family relations.

  • Kerr Petitioner (1968): Case related to family provision.

  • SLC 2009 Legal Rights Reform: The policy choice aspect of legal rights for dependents.

  • SLC Reform (Issue Option 2): Dependent entitlements from non-inherited estate portions.

  • Disinheriting Children: 79% of participants felt it was acceptable.

  • Disinheriting Spouses: 63% thought this was acceptable.

  • Illot v Mitson quote: English law prioritizes will ownership.

  • Illot v Mitson Baroness Hale: Present law lacks practical guidance.

  • Thompson v Raggatt (2018): Cohabitant's cottage claim in court.

  • Wellesley v Earl Cowley (2019): Daughter received £20,000.

  • Lewis v Warner (2018): Cohabitant offering to buy the house.

  • Re Clarke (Decd) 2019: Widow with a substantial award.

  • Forfeiture Act 1982 s1(1): Killer's disinheritance.

  • Forfeiture Act 1982 s2(2): Assessing conduct.

  • Succession (Scotland) Act 2016 s12(3)(a): Predeceasing and timeframe limits.

  • Parricide Act 1594: Disinheriting subsequent generations in the case of parricide.

  • Petitioner Smith: Importance of moral culpability in disinheritance rulings.

  • Burns v Secretary of State for Scotland: Not every instance of culpable homicide results in disinheritance.

  • Tannock v Tannock (2013): "Unworthiness" concept in disinheritance related to killing the testator.

  • Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011: English and Wales law on predeceasing.

  • Re DWS (2001): Case relating to disinheritance of killers.

  • Re Ninian (2019): Specific case concerning disinheritance.

  • SLC 1990 Forfeiture: Rule recommendation put on statutory footing for convicted killers.

  • Hunter's Executors, Petitioners (1992): Case on disinheritance.

  • Macleod and Zimmerman: Romans went further in disinheritance than just killers.

  • Law Commission 2005: Disinheritance critique based on legislative format.

  • Killer Forgiven: Disinheritance is based on presumed intent, not punishment.

  • Killer Not Forgiven: Killer benefits from crime.

  • C v M (2014) & C v Advocate General for Scotland (2012): Specific cases relating to disinheritance.

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Description

This quiz covers key concepts and principles of succession law, including important acts and legal interpretations relevant to estate distribution in the absence of a will. It highlights contributions from various scholars and the impact of cohabitation on inheritance rights. Test your understanding of these essential legal frameworks!

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