Duties The personal representatives (PRs) must identify: • the beneficiary entitled • what each beneficiary is entitled to receive • the time at which each legacy should be paid Types of legacy A specific legacy is a gift of particular property forming part of the testator's estate at death. To be effective, a specific legacy must be part of the testator's property at death and must be identifiable by sufficient description and distinguished from the testator's estate generally. We have assumed this Q&A relates to a property which is a specific legacy. A general legacy is a gift of property or money, not distinguished from others of the same kind and

Business property relief on testator’s death When preparing the inheritance tax (IHT) return for the testator’s estate, the personal representatives (PRs) will need to consider whether or not business property relief (BPR) is available to relieve the IHT otherwise chargeable on the business assets as a result of the testator’s death. For an introduction to BPR and the conditions for its application, see Practice Note: IHT—business property relief. For details on how the PRs can claim BPR, see Q&A: How is Business Property Relief (BPR) formally claimed and is there a deadline for claiming BPR on death? The potential sale of the business after the testator’s death may be relevant in terms of the availability of BPR on a subsequent IHT

Section 18(1) of the Wills Act 1837 (WA 1837) provides that, subject to the exceptions in WA 1837, s 18(2)–(5), a Will shall be revoked by the marriage of the testator. WA 1837, s 18(5) contains the proviso that WA 1837, s 18 does not apply to a marriage which results from

Under section 35 of the Administration of Estates Act 1925 (AEA 1925), any charge secured on a real property of the deceased is primarily to be paid out of the property itself. This is the general rule and applies even if the Will does not specify that the property is to pass subject to the charge. However, if the Will specifies that the property is to pass free from any debts or charges or otherwise expresses a contrary intention, then the general rule will not apply and the charge will be payable out of the residuary estate in the same way as other unsecured debts. If the property is insufficient to cover the amount of debt charged on it, then the remainder of the debt would also

It is possible for the laws of one jurisdiction to determine the validity of a Will, but the laws of another jurisdiction to determine succession. If

Recovery of part of the debt A third party debt order can be used to satisfy part of a judgment debt. The judgment creditor can then consider other enforcement methods to recover the balance of the debt. When they embark on the process of enforcement and apply for an interim third party debt order under CPR 72, the judgment creditor will not usually know whether the funds in a bank account are sufficient to satisfy the debt in full. It is only when the bank or building society is served with the interim third

An easement giving a right of way or to pass and repass is ordinarily a right for the owner from time to time of dominant land to access servient land for the purpose of accessing the land owned by the latter, by way of easement. However, a right of way can be established by other means, such as a mere personal licence, which would not run with the land and would be terminable at will. However, most rights of way, properly understood, are property rights which run with the land rather than being personal to an individual or class of individuals. See, generally, Practice Note:

Reimbursement of fees We would initially suggest a review of the contract and consider what provisions it specifically makes concerning the payment, nature and forfeiture of fees paid in advance. The specific terms may offer the customer an opportunity to secure a refund. If there is no specific contractual term securing the refund for the customer, an ambiguity in the contract drafting may also offer the customer an opportunity to negotiate their return. Practice Notes: Contract interpretation—the guiding principles and Rules of contract interpretation offer guidance as to how the terms of a contract should be interpreted and construed. However, if the contract clearly provides that the advance fees paid by the customer are non-refundable in any situation, then in determining whether the customer has any options to secure its return despite

Where land is owned by two or more people, they each have a simultaneous interest in that land—a statutory ‘trust of land’ arises. Co-owners may hold the property on trust for themselves as either joint tenants, or tenants in common. If co-owners are joint tenants, there is a right to survivorship, whereby when a joint tenant dies, his interest automatically vests with the remaining joint tenants. If co-owners are tenants in common, they each have a beneficial share in the property. This means that when one of the co-owners dies, their equitable interest in the property will pass under their will or under the intestacy rules. The legal estate will still pass under the survivorship rules as it can only be held by trustees acting

Exercising owner’s powers A person who is registered as proprietor, or is entitled to be so registered, has owner’s powers under section 24 of the Land Registration Act 2002 (LRA 2002). An owner’s powers in relation to a registered estate are set out in LRA 2002, s 23 and consist of: • power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a mortgage by demise or subdemise, and • power to charge the estate at law with the payment of money Where more than one person is registered as proprietor, they will hold the legal estate on trust as joint tenants. The legal interest in either a freehold or leasehold

Mines and minerals By way of background, mines and minerals are rebuttably presumed to be included in the registered title of surface land; this reflects the common law position with regard to mines and minerals where the surface lands are unregistered. The exception of minerals, which is of no advantage unless a right to work them is added, necessarily implies the existence of a power to recover the minerals and of the right of working. However, certain rights may not be included. In particular, clear words must be used where a right to break open the surface is required. A reservation of a right to get minerals does not operate as an exception of the minerals themselves, unless an intention to that effect is clearly shown; see Practice Note: Mines and minerals—property issues. Despite the common law presumption that the landowner owns everything below the surface, no statutory indemnity (applicable to persons suffering

Unlike real property, where a covenant in a lease will become binding on the successors and assigns upon the purchase of the asset (ie a house or land), an agreement under English law relating to personal property, such as trade marks, cannot do so. To attempt to solve this problem, coexistence agreements may be used most usually where the fields of activity of each party are completely different. Certainly, under English contract law, the rules relating to privity of contract mean that a successor will not be bound by what his/her predecessor may have agreed with a third party. The predecessor, however, will remain bound by the original agreement. Therefore, if a successor requires any breach by the third party to be addressed, they must pursue the matter through the chain of agreements back to the predecessor and third party. Invariably, in an effort to ‘bind’ the successor/assign,