Distribution on the basis of family or stock, the share then being subdivided equally between the members of the family or stock.
Where the testator has two children both of whom have two children, one of whom predeceases the testator, survived by his two children, a distribution of the residue per stirpes will give an equal share to each family. The surviving child takes the whole of his family's share and the children of the predeceasing child take that family's share equally between them.
Total intestacyA total intestacy occurs when all of the deceased's property is undisposed of because:•the deceased did not make a Will•the deceased left an invalid Will•the deceased's Will was revoked•the Will does not contain any disposition of the deceased's property, or•the Will, although valid, fails to be effective because, for instance, the sole beneficiary predeceased the deceasedIntestacy rules applicable on total intestacyIf the deceased died intestate, Parts III and IV of the Administration of Estates Act 1925 (AEA 1925) apply to:•all the movable property of the deceased wherever situated, provided the intestate was domiciled in England and Wales, and•all immovable property of the deceased in England or Wales, whether the deceased was domiciled there or elsewhereThe intestacy rules apply to the residuary estate of the deceased not otherwise disposed of, ie the property that remains after all of the deceased's debts have been paid and any valid legacies effected. The rules apply only to property that could have been disposed of under the deceased's Will had they made one, so, eg do not operate in relation to assets held jointly by the deceased and another person and which pass by survivorship.The principal effect of intestacy is that the intestate's property becomes subject to an immediate statutory trust.The succession to the deceased’s residuary estate is determined by the
Usually, the draftsperson will have met the client to take instructions and will have obtained all the relevant information regarding their circumstances through that meeting and other communication with the client. Using the information and the instructions from the client as to what they want their Will to do, the general form of the Will can be planned. It will be necessary to determine which of a number of drafting options are appropriate to the client.The Wills of spouses and civil partners will likely be similar, although certain specific individual circumstances or preferences of each may dictate differing terms.Absolute interests versus trustsIn determining the most appropriate form for the Will, the draftsperson needs to consider the advantages and disadvantages of absolute interests versus using a trust, as well keeping the client's wishes at the centre of the process. Some of the most common considerations are:•if a surviving spouse or civil partner is to have a limited ability to deal with or dip into the capital of the estate, a life interest may be preferable•if it is a matter of concern, a life interest can protect assets in the event of a surviving spouse or civil partner forming a new union or cohabiting (but a lifetime termination of the trust may have a capital gains tax (CGT) disadvantage)•in the case
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Life interest trust—flexible This trust is made on [date] Parties 1 [settlor] of [address] (the Settlor) and 2 [original trustees] of [addresses] (the Original Trustees) Background The settlor wishes to make this Trust for the benefit of [name] (the Principal Beneficiary) and has transferred to the Original Trustees the assets described in Schedule 1 to be held on the following trusts. This Deed provides: 1 Definitions and interpretation 1.1 In this Trust: Beneficiaries • means (subject to clause 5) the following persons: (a) the Principal Beneficiary; (b) the Principal Beneficiary’s [spouse and on the Principal Beneficiary’s death, their [widow OR widower] ]; (c) the descendants of the Principal Beneficiary; (d) the spouses, widows and widowers (whether or not remarried) of the descendants of the Principal Beneficiary, and Beneficiary has a corresponding meaning; Charitable • means charitable (and exclusively charitable) according to English law; Charity • means a trust, corporation, association, society or other institution established only for charitable purposes and Charities has a corresponding meaning; interest in possession • means the present right of present enjoyment of any property comprised in the Trust Fund; [Spouse • or spouse includes: (a) a civil partner registered under the Civil Partnership Act 2004; and (b) a spouse of the same sex; and a person is a surviving spouse whether or not they remarried or entered into another civil partnership and widow and widower shall be construed accordingly;] Trustees • means the Original Trustees or any other trustees or trustee for the time being
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An individual dies intestate with no surviving spouse, issue, parent, sibling, grandparent, aunts or uncles, but does have cousins. The deceased’s father’s brother married the deceased’s mother’s sister. Is their child who survives the deceased entitled to a double share of the estate given parentage? We have assumed that the deceased’s father and his brother are brothers of the whole blood and that the deceased’s mother and her sister are sisters of the whole blood. We refer you to
If A and B enter into a Will contract whereby A promises to leave property (land) to B in A's Will and B provides consideration for the same, what is the position if B unexpectedly dies first? Can B's estate enforce the contract and if so how, bearing in mind A is still alive? The courts have long recognised as effective and enforceable contractual promises to make or not to revoke Wills. A may thus bind himself personally as to the contents of his Will and may bind his assets so that his personal representative must give effect to such agreement in favour of B at the expense of the beneficiaries under any Will or intestacy taking effect contrary to the contract. Enforcement for breach is usually by the contractual remedies of damages or specific performance (although usually in relation to the asset in question) or, in relation to promises of specific legacies, pursuant to a trust long recognised as arising by virtue of the contract of the property in question. In order to be enforceable the following criteria must be met: • there must be a legally enforceable contract at law, namely offer and acceptance coupled with consideration (or by deed) • there must be certainty of intention and the obligation, a mere statement or expression of future intention, representation, hope or desire not being sufficient • the subject matter
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This week's edition of Private Client weekly highlights includes: (1) The Law Commission consults on modernising trust law and reopens its Wills reform project; (2) Stephen Hoey v HMRC, in which the Upper Tribunal ruled on several issues, including the motive defence under the transfer of assets abroad regime, where a UK contractor with offshore employer providing services to UK end-users was remunerated through EBT arrangements; (3) Lin v Gudmundsson (a bankrupt) and others, in which the court considered its power to annul a bankruptcy order in the context of divorce proceedings; (4) The Charity Commission seeks views on revisions to responsible investments guidance; (5) Ugolor v Ugolor, which offers guidance on the Court’s appointment of an administrator pending suit under section 117(1) of the Senior Courts Act 1981; (6) Wood v Commercial First Business in which the Court of Appeal held that it was neither necessary nor desirable to find a fiduciary duty in order to grant civil remedies for the payment of a bribe or secret commission, and (7) a reminder about our Customer Survey on UK/EU Divergence.
This week’s edition of Private Client highlights includes: (1) Updated guidance from HMCTS Probate Service; (2) Murphy and Hyde Munir, which concerned sham trusts in bankruptcy proceedings; (3) The UT’s decision in HMRC V The Quentin Skinner 2005 Settlement L and Others on the qualifying period for settlements and business asset disposal relief; (4) Gosden v Halliwell Landau, in which trust beneficiaries brought a successful claim against solicitors for loss of benefits under lifetime trusts; (5) SD v Royal Borough of Kensington And Chelsea, in which the Court of Protection held that it was in the best interests for care home resident to receive the COVID-19 vaccine against her daughter’s wishes; (6) Re Keeping Kids Co, in which the court dismissed a directors’ disqualification claim against the trustees and CEO of the charity Kids Company; (7) In the matters of FA Trust and FB Trust, the first case in Bermuda to consider the test to remove a trust protector, and (8) Spring Budget 2021 coverage and predictions.
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347. Gift per stirpes. The Latin word stirps can be translated as meaning 'stock'. However, in modern usage the phrase as a whole can be taken to mean 'by family'1. As to how the gift is to be distributed among the members of the family, it is a characteristic of distribution per stirpes that remote descendants do not take in competition with a living immediate ancestor of their own who takes under the gift2.
399. Inference from context in favour of distribution per stirpes. Although prima facie a distribution is made per capita1, the context of the whole will may require a stirpital distribution2. Such a construction has been adopted where the number of shares was mentioned and was equal to the number of parents3, where the words used implied a further subdivision of a share4, where there was a reference to the Statutes of Distribution5, and where the gift was to a number of parents and their children in such a manner that the children were substituted for6, or took
Per stirpes is referenced 2 in Halsbury's Laws of England
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