Wills and Succession Flashcards

What is the primary legal duty of a Personal Representative (executor or administrator) in administering a deceased's estate?

Answer: To collect the estate assets, pay the deceased's debts and liabilities, and distribute the net estate to those entitled

A Personal Representative's core duty is to gather in the estate, discharge all debts, funeral expenses, and administration costs, and then distribute the net estate to beneficiaries under the will or intestacy rules.

What is the key distinction between a grant of probate and a grant of letters of administration?

Answer: Probate is granted where there is a valid will with a named executor willing and able to act; letters of administration are granted where there is no will or no executor

A grant of probate confirms an executor's authority under a valid will, while letters of administration are granted on intestacy or where no executor is named, survives, or is willing to act.

The rule in Saunders v Vautier (1841) entitles certain beneficiaries to bring a trust to an end prematurely. What conditions must be satisfied?

Answer: All beneficiaries must be adults with full mental capacity and together hold the entire beneficial interest in the trust property

Saunders v Vautier allows all beneficiaries who are adults, of full legal capacity, and collectively entitled to the entire beneficial interest to collapse the trust and demand an outright transfer of assets from the trustees.

What is a 'fully secret trust' in English succession law?

Answer: A trust that arises where property is left by will apparently outright to a person who privately agreed before the testator's death to hold it on trust for others

A fully secret trust arises where the will makes what appears to be an outright gift but the testator communicated the trust obligation to the secret trustee before death and the trustee accepted it; equity prevents the Wills Act from being used as an instrument of fraud.

What effect does divorce (or dissolution of a civil partnership) have on an existing will under section 18A of the Wills Act 1837?

Answer: Gifts and appointments in favour of the former spouse take effect as if the former spouse had died on the date of the divorce, but the rest of the will remains valid

Section 18A Wills Act 1837 provides that on divorce or dissolution, any gift or appointment of executor in favour of the former spouse is treated as if that spouse had predeceased the testator, but the remainder of the will continues in force.

What does 'per stirpes' distribution mean in succession law?

Answer: Distribution through branches of the family tree so that a predeceased beneficiary's share passes to their own descendants

Per stirpes (Latin: 'through the branches') means that if a beneficiary predeceases the testator, their share descends to their own children or other issue, preserving their branch's entitlement.

What is a 'Benjamin Order' and when would a Personal Representative seek one?

Answer: A court order authorising Personal Representatives to distribute the estate on the assumption that a missing beneficiary is dead or has no claim, protecting the PRs from personal liability

Derived from Re Benjamin [1902], a Benjamin Order allows the court to authorise distribution on the assumption that a missing beneficiary has predeceased or cannot be found, giving the Personal Representatives a complete defence if the missing person later surfaces.