Diploma in Professional Legal Practice (DPLP) Private Client: Wills, Trusts, Executries and Tax Syllabus

Private Client: Wills, Trusts, Executries and Tax syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Private Client: Wills, Trusts, Executries and Tax in Diploma in Professional Legal Practice (DPLP), not a summary of it.

1. 1

   Wills and Testamentary Writings

   4 topics

   • Capacity and Formal Validity
     • Testamentary capacity and undue influence
     • Requirements of Writing (Scotland) Act 1995
     • Self-proving status and witnessing
   • Drafting the Will
     • Legacies, residue and destinations-over
     • Appointment of executors and trustees
     • Guardianship and survivorship clauses
   • Legal Rights and Protection from Disinheritance
     • Jus relictae, jus relicti and legitim
     • Calculation of the legitim fund
     • Collation inter liberos
   • Revocation and Alteration
2. 2

   Executry Administration

   3 topics

   • Confirmation Process
     • Inventory of estate Form C1 and IHT400
     • Bond of caution where no will
     • Small estates and the Sheriff Court Commissary
   • Intestate Succession
     • Prior rights of the surviving spouse or civil partner
     • Legal rights on intestacy
     • Free estate and the order of heirs
   • Ingathering and Distribution
     • Realising estate and discharging debts
     • Docket transfers and conveyancing of heritage
     • Discharges and accounting to beneficiaries
3. 3

   Trusts

   3 topics

   • Creation and Types of Trust
     • Liferent and fee, discretionary and bare trusts
     • The three certainties and constitution
   • Trustees' Powers and Duties
     • Investment duties and the Trusts (Scotland) Acts
     • Breach of trust and personal liability
   • Variation and Termination of Trusts
4. 4

   Taxation of Estates and Trusts

   3 topics

   • Inheritance Tax
     • Nil-rate band and residence nil-rate band
     • Potentially exempt and chargeable lifetime transfers
     • Business and agricultural property relief
   • Capital Gains Tax on Death and Trusts
     • Uplift on death and disposals by executors
     • CGT within trusts and holdover relief
   • Estate Planning and Lifetime Giving
     • Annual and other exemptions
     • Use of trusts and deeds of variation
5. 5

   Incapacity and Vulnerable Clients

   3 topics

   • Powers of Attorney
     • Continuing and welfare powers of attorney
     • Registration with the Office of the Public Guardian
   • Adults with Incapacity (Scotland) Act 2000
     • Guardianship and intervention orders
     • Access to funds scheme
   • Capacity Assessment and Professional Duties

Private Client: Wills, Trusts, Executries and Tax flashcards for Diploma in Professional Legal Practice (DPLP)

24 of 59 cards from the Private Client: Wills, Trusts, Executries and Tax deck — real questions with worked answers.

1. Under Scots law, what is the general minimum age and mental requirement for a person to have testamentary capacity to make a valid will?

   The testator must be aged 12 or over (per the Age of Legal Capacity (Scotland) Act 1991) and must be of sound mind — able to understand the nature of making a will, the extent of their estate, and the claims of those who might expect to benefit.

2. What are the two formal validity requirements for a will to be 'formally valid' (but not yet self-proving) under the Requirements of Writing (Scotland) Act 1995?

   It must be (1) in writing and (2) subscribed (signed at the end of the last page) by the granter. Subscription alone makes the will formally valid.

3. What additional requirement makes a will 'self-proving' (probative) under the Requirements of Writing (Scotland) Act 1995?

   The granter's subscription must be witnessed by one witness (aged 16+, not a beneficiary), who also signs, and the document states the name and address of the witness. This creates a presumption that it was validly subscribed, so no further proof of execution is needed for confirmation.

4. In Scots succession, what is the difference between 'heritable' and 'moveable' property and why does the distinction matter?

   Heritable property is land and buildings (and rights connected to land); moveable property is everything else (cash, shares, vehicles, furniture). The distinction matters chiefly because legal rights are claimable only out of the net moveable estate, not heritage.

5. What is the doctrine of 'legal rights' in Scots succession and who is entitled to them?

   Legal rights are fixed, indefeasible claims on the deceased's net moveable estate that protect against disinheritance. They are claimable by the surviving spouse/civil partner (jus relictae/relicti) and by children/issue (legitim, the bairn's part).

6. State the fractions for legal rights where a person dies survived by BOTH a spouse/civil partner AND children.

   The spouse/civil partner takes one-third of the net moveable estate (jus relictae/relicti); the children share one-third among them (legitim); the remaining one-third is 'dead's part' disposable by will.

7. State the fractions for legal rights where a person is survived by a spouse/civil partner but NO children (or children but no spouse).

   The single claimant class takes one-half of the net moveable estate as legal rights, and the other one-half is dead's part. (e.g. spouse alone gets 1/2; children alone share 1/2.)

8. What is 'collation inter liberos' in the context of legitim?

   Where two or more children claim legitim, any advances of moveable property made by the deceased to a claiming child during life must be brought back into account (collated) and added notionally to the legitim fund so it is shared fairly among the claiming children.

9. Can a person be forced to accept both a legacy under a will AND their legal rights? Explain.

   No — this is the doctrine of approbate and reprobate (equitable compensation). A beneficiary cannot both take a testamentary provision and claim legal rights; they must elect between the legacy and their legal rights.

10. List the three principal methods by which a will may be revoked in Scots law.

    (1) Express revocation (a revocation clause or a later will revoking the earlier); (2) implied revocation (a later inconsistent testamentary writing); and (3) revocation by physical destruction (tearing/burning by the testator with intention to revoke).

11. What is the conditio si testator sine liberis decesserit and what effect does it have on a will?

    It is a presumption that a will is impliedly revoked where a child is born to the testator after the will was made and that child is unprovided for. The presumption can be rebutted by evidence the testator intended the will to stand.

12. How may a valid alteration (e.g. an interlineation or deletion) be made to a Scottish will after it has been signed?

    An alteration is presumed to have been made after execution and is invalid unless authenticated — ideally signed/initialled by the granter (and witnessed for self-proving status) and declared in the testing clause, or made before subscription and so referred to.

13. What is 'confirmation' in Scots executry practice and what document evidences an executor's authority?

    Confirmation is the process by which an executor obtains the court's authority (from the Commissary Department of the Sheriff Court) to administer (ingather and distribute) the deceased's estate. The grant of Confirmation lists the inventory of estate and is the executor's title to deal with assets.

14. Distinguish an 'executor-nominate' from an 'executor-dative'.

    An executor-nominate is appointed by the deceased in a valid will. An executor-dative is appointed by the court (Sheriff Court) where there is no will, or the will appoints no executor, or the nominated executor is unable/unwilling to act — typically an entitled person under intestacy.

15. What is the function of a 'bond of caution' in Scottish executry, and when is it generally required?

    A bond of caution is insurance (granted by a guarantor) protecting beneficiaries and creditors against an executor's misadministration. It is generally required for an executor-dative, but NOT for an executor-nominate or for a surviving spouse/civil partner inheriting the whole estate under prior rights.

16. Under the Succession (Scotland) Act 1964, what are the surviving spouse/civil partner's 'prior rights' and in what order are they satisfied?

    On intestacy the survivor takes, before free estate division: (1) the dwellinghouse (or its value, up to a statutory cap) in which they were ordinarily resident; (2) furniture and plenishings up to a statutory cap; and (3) a financial provision (cash sum) — a different amount depending on whether issue survive.

17. State the current statutory cap values for a surviving spouse's prior rights on intestacy (dwellinghouse, furniture, and financial provision with/without issue).

    Dwellinghouse up to £473,000; furniture and plenishings up to £29,000; financial provision £50,000 if there are surviving issue, or £89,000 if there are no surviving issue (values per the 2011 Order).

18. In Scots intestacy, in what ORDER are an estate's claims satisfied: prior rights, legal rights, and free estate?

    First, debts/expenses are paid; then the surviving spouse/civil partner's prior rights; then legal rights (of spouse and children) out of net moveable estate; and finally the remaining free estate is distributed under the rules of intestate succession (s.2, Succession (Scotland) Act 1964).

19. Under s.2 of the Succession (Scotland) Act 1964, who is first in line to inherit the free estate on intestacy?

    Descendants (children and their issue) are first. The order then runs: children; parents and siblings sharing (one half each if both present); surviving spouse/civil partner; uncles/aunts; grandparents; collaterals of grandparents; and ultimately the Crown as ultimus haeres.

20. What does 'representation' mean in Scottish intestate succession?

    Representation allows the issue of a predeceasing relative to step into that relative's place and take the share the deceased relative would have taken — distribution is then per stirpes (by branch) rather than per capita.

21. What is meant by 'ingathering' the estate in executry administration?

    Ingathering is the executor's task of collecting in (realising/taking control of) the deceased's assets — encashing accounts, transferring shares, selling or transferring property — after Confirmation, so that debts can be paid and the estate distributed.

22. In what order must an executor pay claims against the estate before distributing legacies to beneficiaries?

    Funeral and deathbed expenses, then administration/executry expenses, then the deceased's debts (secured and unsecured) and tax; only the remaining net estate is then available for legal rights and legacies.

23. Define a 'trust' in Scots law and name the three essential parties to a trust.

    A trust is a legal relationship where a truster transfers property to trustees who hold and administer it (the trust estate) under a fiduciary duty for the benefit of beneficiaries (or a purpose). The three parties are the truster (settlor), the trustee(s), and the beneficiary/ies.

24. Distinguish an inter vivos (lifetime) trust from a mortis causa (testamentary) trust.

    An inter vivos trust is created and takes effect during the truster's lifetime by a trust deed. A mortis causa trust is created by will and takes effect on the truster's death.

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