PROBATE AND ADMINISTRATION- BASICS OF WILLS AND ADMINISTRATION OF ESTATE. -> Establishing the property that falls withing the estate. All of the property owned by a person at the point of their death is collectively known as their estate. Some types of property that does not form part of the estate- this is NOT included within the estate for distribution purposes. What property is not included in the administration of estate JOINTLY OWNED PROPERTY INSURANCE POLICIES WIRTTEN IN TRUST DISCRETIONARY PENSION SCHEME STATUTORY NOMINATIONS 1 Where deceased held property as a joint tenants the property does not form part of the estate- passes on SURVIVORSHIP -> Tax purposes it is severance of the joint tenancy immediately prior to death SECTION 171 inheritance act. - Where the deceased held the property as one of two or more as tenants in common their share DOES form part of the estate - Will be distributed according to the terms of the will or intestacy - Married property act 1882- section 11. Out life assurance on his own life for the benefit of spouse or child. Already named beneficiaries and get paid to them -> Assigned and expressly written in trust. -> Once given away does not belong to the policy holder - gets paid to the named beneficiary. -> Discretionary trust allow employee to leave a letter of wish who they want it to go to. -> Employee dies in service - a lump sum is calculated on basis of employee salary at the time of their death and is paid by the trustee of the pension fund to the member of the family or dependant in the discretionary trust. -> Has to be named -> Statutory provision allowing individuals to nominate what is to happen to certain types of funds after the Nominator dies. -> Exceeding £5,000 in certain trustee saving banks. -> The institution pays the money in the account to a third party. -> If an individual has an account but no nomination has been made- will pass under the will or intestacy- has to be named. Requirements for a valid will? Capacity- -> Must be over 18- unless can make a privileged will and must have mental capacity.
-> Test Banks v Goodfellow 1870- testator must understand Common law test- SOUNDNESS OF MIND MEMORY AND UNDERSTANDING. - Nature of his acts/ broad effects - Extent of his property - Moral claims he out to consider - Not suffering from insane delusions - The testator must have the requisite capacity (statutory test - section 1-3 in Mental capacity act 2005 The code of practice that accompanies MCA 2005 states the test is suppose to tie in with common law position rather than create a new test. James v James confirmed this Proof and presumption - - Prove that all necessary elements of mental capacity are present. Not Burdensome, Where a person shows no sign of mental confusion, presumed that capacity exist. - MCA 2005- section 1(2) for the purposes of