Law Society of Scotland Professional Education and Training (PEAT) PEAT 1: Private Client - Wills, Executries and Trusts Syllabus

PEAT 1: Private Client - Wills, Executries and Trusts syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for PEAT 1: Private Client - Wills, Executries and Trusts in Law Society of Scotland Professional Education and Training (PEAT), not a summary of it.

1. 1

   Wills and Testamentary Writings

   4 topics

   • Capacity and formal validity
     • Requirements of Writing (Scotland) Act 1995
     • Testamentary capacity and undue influence
   • Drafting the will
     • Legacies and residue
     • Appointment of executors and guardians
   • Revocation and alteration of wills
   • Survivorship destinations and special destinations
2. 2

   Succession Law

   4 topics

   • Testate succession
   • Intestate succession
     • Prior rights
     • Free estate and order of succession
   • Legal rights
     • Legitim and jus relictae/relicti
     • Discharge and collation
   • Vesting and conditions
3. 3

   Executry Administration

   4 topics

   • Confirmation procedure
     • Inventory of estate
     • Bond of caution
   • Ingathering and realising the estate
   • Distribution and discharge of executors
   • Insolvent and small estates
4. 4

   Trusts

   3 topics

   • Creation and types of trust
     • Liferent and fee
     • Discretionary trusts
   • Trustees' powers and duties
     • Duty of care and investment
     • Breach of trust
   • Variation and termination of trusts
5. 5

   Tax and Capacity Planning

   4 topics

   • Inheritance tax in estate planning
     • Nil-rate band and exemptions
     • Lifetime transfers
   • Capital gains tax on estates and trusts
   • Powers of attorney
     • Continuing and welfare powers
     • Registration with the Public Guardian
   • Guardianship and intervention orders

PEAT 1: Private Client - Wills, Executries and Trusts flashcards for Law Society of Scotland Professional Education and Training (PEAT)

21 of 54 cards from the PEAT 1: Private Client - Wills, Executries and Trusts deck — real questions with worked answers.

1. What is the minimum age at which a person can make a valid will in Scotland, and under which statute?

   Age 12, under the Age of Legal Capacity (Scotland) Act 1991 (s.2(2)). This is the same for both boys and girls.

2. State the two limbs of 'mental capacity' (testamentary capacity) required to make a valid will in Scots law.

   The testator must (1) be of sound mind, understanding the nature of the act and the extent of their estate, and (2) be free from 'facility and circumvention' and from undue influence — i.e. acting voluntarily, not through a weakened mind being taken advantage of.

3. Under the Requirements of Writing (Scotland) Act 1995, what is the minimum requirement for a will to be formally valid?

   It must be in writing and subscribed (signed at the end of the last page) by the granter/testator. Witnessing is NOT required for mere validity.

4. What additional step makes a will 'self-proving' (probative) under the Requirements of Writing (Scotland) Act 1995, and why does it matter?

   The granter's subscription must be witnessed by one witness (who also signs). A self-proving will is presumed validly executed without further evidence, which is needed to obtain confirmation.

5. In Scots law, what is the legal term and effect of a vitiating factor where a person of weakened mind is induced to make a will benefiting the inducer?

   Facility and circumvention. If the granter was 'facile' (weak-minded, though not insane) and was circumvented (imposed upon) to their loss, the will (or relevant provision) can be reduced.

6. List the typical key clauses a solicitor includes when drafting a Scottish will.

   Revocation clause; appointment of executors; specific legacies; pecuniary legacies; residue clause; survivorship clause; powers of trustees/executors; (often) a testing clause/docquet. Funeral wishes are usually non-binding.

7. What is the difference between a 'legacy' that adeems and one that abates in Scots succession?

   Ademption: a specific legacy fails because the specific item no longer exists in the estate at death. Abatement: legacies are reduced proportionately (by class order) when the estate is insufficient to pay them all in full.

8. State the order of abatement of legacies when an estate is insufficient.

   Residuary legacies abate first, then general (pecuniary) legacies, then specific legacies, and special/demonstrative legacies last. Within a class, abatement is proportionate (pari passu).

9. Name the three principal methods by which a will may be revoked in Scots law.

   (1) Physical destruction by the testator with intention to revoke (animus revocandi); (2) a subsequent will or codicil (express revocation clause or by implication where inconsistent); (3) operation of the conditio si testator sine liberis decesserit.

10. Explain the conditio si testator sine liberis decesserit.

    An implied condition that a will may be revoked (presumed revoked) where the testator later has a child (born or adopted) who is unprovided for and who was not contemplated when the will was made. It is a rebuttable presumption.

11. If a later will is destroyed/revoked, does an earlier revoked will automatically revive in Scots law?

    No. Revocation of a later will does not, of itself, revive an earlier will (no automatic doctrine of revival). The earlier will is only effective if it can be shown the testator intended it to revive, or it was never validly revoked.

12. How are unauthenticated alterations (additions/deletions) to a Scottish will generally treated?

    Alterations made after execution are presumed to have been made after subscription and are therefore ineffective unless separately authenticated/subscribed. The original wording stands unless the alteration is proved to have been part of the will when signed.

13. What is a 'special destination' in Scottish heritable property?

    A direction in the title deed specifying who succeeds to the property on the owner's death, e.g. a survivorship destination ('to A and B and the survivor'). On the first death the deceased's share passes automatically to the survivor outside the will.

14. When can a survivorship special destination be 'evacuated' (defeated) by a will?

    Only where the co-proprietor had the power to evacuate (e.g. they provided the price for their own share) AND the will contains a specific reference to the destination expressing intention to revoke it. A general revocation clause is insufficient (Succession (Scotland) Act 1964, s.30).

15. What is the difference between testate, intestate, and partial intestacy?

    Testate: the deceased left a valid will disposing of all the estate. Intestate: no valid will (or one disposing of nothing). Partial intestacy: a valid will exists but fails to dispose of the whole estate, so the undisposed part falls into intestacy.

16. In Scots intestate succession, state the strict order in which the estate is distributed.

    1) Prior rights of the surviving spouse/civil partner; 2) Legal rights (jus relictae/relicti and legitim); 3) The free estate, distributed per the Succession (Scotland) Act 1964, s.2.

17. List the three prior rights of a surviving spouse/civil partner and their current statutory ceilings.

    (1) Dwelling house up to £473,000; (2) Furniture and plenishings up to £29,000; (3) Financial provision of £50,000 (if the deceased left issue) or £89,000 (if no issue). Set by the Prior Rights Order (Succession (Scotland) Act 1964).

18. State the s.2 Succession (Scotland) Act 1964 order of succession to the free estate (intestate).

    1) Children/issue; 2) if none, parents and siblings share (half to parents, half to siblings); 3) siblings (if no parents) or parents (if no siblings) take all; 4) surviving spouse/civil partner; 5) uncles/aunts; 6) grandparents; 7) great-uncles/aunts; then ascendants and the Crown (ultimus haeres).

19. What are the three categories of legal rights in Scots succession and who claims each?

    Jus relictae — surviving wife; jus relicti — surviving husband; (both now equal for spouses/civil partners) and legitim ('bairns' part') — claimed by children/issue. They are claims on the net moveable estate only.

20. Calculate the fraction of net moveable estate each legal right takes. Give both scenarios.

    If survived by BOTH spouse/CP and issue: spouse gets $\frac{1}{3}$, children share $\frac{1}{3}$ (legitim), and $\frac{1}{3}$ is 'dead's part'. If survived by spouse/CP OR issue (only one): the survivor's class takes $\frac{1}{2}$ and the other $\frac{1}{2}$ is dead's part.

21. Do legal rights attach to heritable or moveable property in Scots law?

    Moveable property only (e.g. cash, shares, vehicles, furniture). Heritable property (land and buildings) is NOT subject to legal rights.

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