Intestate Estate Distribution

Question 1 (25 marks in total – you must answer all parts of the question)
Part (i)

In this situation, the claim is assessed to be valued at about £80,000 – £85,000. Based on this, the court proceedings are to be started in the High Court and not in the County Court. This is based on the value of the claim as per the rules set out in Civil Procedure Rules (CPR). As this is a personal injury claim, the High Court is the proper court for starting the court proceedings because the claim is more than £50,000. Proceedings in the case of a personal injury claim where the value is more than £50,000 (CPR PD 7A, paras 2.1–2.2). In cases of below £50,000 value, the proper court for starting court proceedings would be County Court. Therefore, based on the CPR rules, the proper and appropriate court for starting the court proceedings in this case would be the High Court.

Part (ii)
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CPR, Part 9 provides the answer to this question. In Part 9, the defendant to a claim is required to respond to the particulars of claim. 9.1 states that the when the defendant receives a claim form, the requirement to respond to the claim arises only when the claim form is followed by a particulars of claim. In this case, because the particulars of claim have been served on KSL, there are certain steps that have to be taken by KSL to respond in full to the claim made by Mr. MacLaughlin. These steps are provided in 9.2 of the CPR. This provides the defence, admission or acknowledgment of service. When the particulars of claim is served on the defendant, the steps include filing or serving an admission in accordance with Part 14 of CPR, filing a defence in accordance with Part 15 of CPR or do both, and filing an acknowledgment of service in accordance with Part 10. Under Part 14 of CPR, the defendant can give the notice in writing to the claimant on whether the party admits the truth, admits part or whole of the claim, and admission of liability (14.1 of CPR). In Part 15 of CPR, the defendant who wants to defend all or part of claim has to file a defence (15.2 of CPR). This has to be done within 14 days after service of the particulars of claim (15.2 of CPR). In the case where the defendant files an acknowledgment of service under Part 10, then the defence has to be filed 28 days after service of the particulars of claim (15.4 of CPR). Under 15.6 of CPR, the defendant also has to serve a copy of the defence on every other party. Under Part 10, the defendant may file an acknowledgment of service if he is unable to file a defence within the period specified in rule 15.4 or where he wants to dispute the court’s jurisdiction (10.1 of CPR).

Part (iii)

The powers of stop and search are allowed to the police and such search can be carried out; however, there are certain conditions that have to be satisfied for the search to be lawful and valid. The Police and Criminal Evidence Act 1984 (PACE 1984) is the principal law for stop and search powers and Code A, Section 1.4 provides the purpose of the stop and search powers to enable officers to allay or confirm suspicions about individuals but who are required to justify the use or authorisation of such powers to their supervisory officers or in court. The power is given to the police to be exercised on a reasonable ground (PACE, Code A [2.1(b)]). The reasonableness is based on the formation of a genuine circumstance and a reasonable suspicion that the object would be found.

First, the police officer can conduct a stop and search operation if they have ‘reasonable grounds’ that the individual is carrying one or more of the following: illegal drugs, weapon, stolen property, or something that can be used to commit a crime. These are called as the reasonable grounds for stop and search operation. In this situation, the police has suspicion of stolen property being carried or something being carried that can be used to commit a crime. However, this suspicion alone does not make the search operation legal. The stop and search operation can also be carried out without reasonable grounds if it has been approved by a senior police officer. This can happen where there is a suspicion of a serious violence, carrying weapon, and being in a specific location or area. This is not applicable in this case because the facts indicate that the client is being stopped for suspicion of carrying stolen property or carrying something that can be used for committing a theft.

Thus, the search can be said to conducted under reasonable grounds. This requires further conditions to be satisfied. Before a person is searched, the police officer must tell the person their name and police station, the information of what they expect to find, the reason why they want to search, and the law under which they are legally allowed to search, and the person is given a record of the search or a copy of the same later. In this case, the police officers have not given him any such information before carrying out the search. What they have done is to approach the client and say: “Please open your bag sir, we would like to see what’s inside.” Then they looked in the bag. They did not inform the client as to their name and police station, or what they expected to find, and under what law they were carrying out this search.

To conclude, the search operation is not legal because the officers did not inform the client their name and police station, the information of what they expect to find, the reason why they want to search, and the law under which they are legally allowed to search.

Question 2 (25 marks in total – you must answer all parts of the question)
Part (i)

The first search or investigation that can be undertaken is concerned with the information provided with respect to the rumours that there are plans to develop the area round Foundry Gardens including a major road being built at the bottom of the garden of the house. With respect to this, a local authority search can be undertaken. are arguably the most important type of search your solicitor will arrange, as they will look at information held by the local authority involving the property, including prospective planning permission or restrictions. They will also show who is responsible for maintaining roads and paths adjoining the property. The local authority search allows the buyer to see whether there are any road schemes, notices and planning matters. These are public charges that cannot be known by the seller, but are registered by the local authority under the Local Land Charges Act 1975. The local land charges register can be studied to get information on the question of the roads.

  1. Paul Ozin and Heather Norton, PACE: A practical guide to the police and criminal evidence act 1984 (Oxford University Press 2019).
  2. Robert Abbey and Mark Richards, A practical approach to conveyancing (Oxford University Press 2017) 105.

With regard to the impression that there was some friction between the current owner and one of their next-door neighbours, the buyer would be interested in knowing if the property is subject to any past or present disputes with the neighbours. The enquiry can be raised first with the sellers themselves, and the sellers may be asked as to whether there are any past and present disputes with the neighbours. The sellers are under an obligation to provide the information as best to their knowledge because they can be liable for misinformation on dispute with neighbours as established in the case law as well. The buyer would also be interested in knowing whether the boundaries and the fences of the property are owned by the seller and whether the seller has the responsibility of maintenance and repair.

As the property sits in the grounds of an old chemical factory, the third search can be Environmental Search. This would help to assess risk and avoid potentially expensive clear up costs for the client at a later point. The previous industrial usage may have contaminated the land and this helps to assess this risk.

Part (ii)

The first step is to check sale contract for the accuracy of the identification of seller and buyer and description of the property (title number). Indeed, all aspects of the contract such as title, conduct, completion date, insurance and incumbrances are to be checked at this point. The second step would be to get a transfer deed ready and for registered property, it is by a Form TR1 and it should be signed by the seller and buyer if it contains a covenant or declaration on Buyer’s behalf. The third step would be to set up a meeting for the completion of the contract. All the documents are to be executed prior to completion and held by the seller. The completion takes place with the contract and evidence of title, title deed. The next step is to complete and date the mortgage deed, complete file copies of documents, and stamp documents.

Part (iii)

Although the date of the death is not provided in the scenario, it is being assumed that the death took place after 6 February 2020. The applicable law is in the Inheritance and Trustees' Power Act, which came into effect on 1 October 2014, and is relevant to the intestacy rules. The estate consists of personal effects and chattels including, car and valuable Chinese pottery, savings of £300,000 which was money that he inherited from his father, joint bank account with more than £20,000 in it, and a life insurance policy worth £90,000 which was written in trust for their three children. The life insurance policy is clearly written in trust for the children, so the intestacy rules will not apply to this. The rest of the property can be distributed between the spouse and the children as per the provisions of the Inheritance and Trustees' Power Act. The personal effects and chattels go to the spouse. The rest of the estate which is comprised of £300,000 is to be distributed as follows: the first £270,000 of the estate and half of the remaining estate go to the spouse and the half of the remaining estate go to the children. In this case, the £270,000 will go to the spouse and the half of the remaining (£15000) will also go to the spouse. The children will receive £15000.

  1. Ibid.
  2. McMeekin v Long [2003] 29 EG 120.
  3. Robert Abbey and Mark Richards, A practical approach to conveyancing (Oxford University Press 2017) 126.

With regard to the joint savings account, this does not automatically become a part of the estate of the deceased. The court has to see the intention of the deceased with respect to the joint savings account. The general rule is that when a person dies, the share of their funds in their joint account pass to the surviving account holder by the principle of survivorship as approved by the court in Whitlock v. Moree. The same principle of survivorship will apply to the share in the property, with the share of the deceased now vesting in the joint owner/spouse. The right to survivorship is based on jus accrescendi so that the death of one joint tenant leads to the survivorship to the surviving joint tenant.

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To conclude, the intestacy law and law of survivorship applies in this case to assess how the heirs would inherit the deceased’s estate. As per this, the joint account funds will now vest in the spouse as per the rule of survivorship. The personal effects and chattels will also vest in the spouse as per the intestacy rules. The savings account money will be distributed with £285,000 to the spouse and £15000 to the children. The interest in the house will now go to the surviving joint tenant/spouse as per the rule of survivorship which means that the surviving joint tenant receives the interest of the deceased joint tenant. The life insurance policy goes to the trust for children as per the trust created.

  1. Drakeford v Cotton and Stain [2012] EWHC 1414(Ch).
  2. Whitlock v. Moree (2017) UKPC 44.
  3. JA MacKenzie, Textbook on Land Law (16th Edition Oxford University Press 2016).
Books

Ozin P and Heather Norton, PACE: A practical guide to the police and criminal evidence act 1984 (Oxford University Press 2019).

Abbey R and Mark Richards, A practical approach to conveyancing (Oxford University Press 2017).

MacKenzie JA, Textbook on Land Law (16th Edition Oxford University Press 2016).


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