Law of Succession - Assignment Example

? LAW OF SUCCESSION - CASE HISTORY By 07, May From the facts of this case history, David died aged 71, leaving behind his wife (Emma), 4 children, 4 grandchildren and a number of other relatives. David made two wills. The first was made on 1st November 1977, leaving three-quarter of his property to Maria (who was subsequently divorced wife) and the rest to be divided equally among his two sons (Stephen and Paul). The second will dated 23rd may 1980, was to the effect that, the entire property of the deceased should vest in his sister Barbara. To add, a letter attached to the second will and dated 4th January 1988 provides that the deceased wished to change his will dated 23rd May 1980 to the effect that Barbara to receive 25% of the property while the remaining 75% to vest in Emma the deceased wife. This letter amounts to a codicil. Consequently, this case history raises questions that should be deliberated in dealing with this succession matter. Some major questions are: whether the deceased died testate or intestate and if testate, which will shall be admitted to probate to distribute his estate. Consequently, the validity of each will shall be considered. Testate succession is arises when the testator makes a valid and enforceable will which ensures that upon his death, his property devolves to persons of his choice. By preparing a will, David indicates that he desires to retain absolute or limited control over his property after death. A will is admitted to probate after it has been proved to be a valid testamentary disposition. The procedure of showing the formal validity of a will is denoted to as propounding the will. David’s will must, therefore, be subjected to the formal requirements of a valid will which includes:-1 1. Whether the testator had the capacity to make the will. Capacity entails both age and mental. The Law of Succession Act empowers any adult of sound mind to dispose of, all or any of his free property by will.2 The testator must be mentally competent when the will is executed. In Ewing v Bennett,3 it was held that lack of competence before or after the will is made does not invalidate the will. The test of mental competence was established in the case of Banks v Goodfellow, where it was held that the test of mental competence is whether the testator had a ‘sound and disposing mind and memory’, that required the testator to have ‘an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.’4 Therefore, this includes the testator appreciating all the moral claims upon him, that is, he should be able to recollect all the persons that he is morally bound to provide taking into consideration the testator’s relationship to the person, even if he is not going to benefit them.5 The burden of proof lies with the propounder of the will, which must satisfy the court on the balance of probabilities, that the testator was mentally competent to make the will. However, if the will on the face of it is rational, then a presumption arises that the testator was mentally competent to make the will. In Symes v Green,6it was held that, if the party opposing the will rebuts the said presumption by producing evidence to the contrary, the burden of proof shifts back to the propounder. In light of the above discussions, David has the capacity to make a will, because he was an adult at the time he made all the wills. The issue of the deceased’s soundness of mind can only arise when a beneficiary wishes to challenge the validity of the will. 2. Whether the will was made voluntarily without any duress, undue influence or by mistake. A testator must be conversant and assent the substance of their will. A testator assents to the terms of the will if he executes it in those terms on his own volition and without any coercion or undue influence by a third party.7In order to make a valid will, the testator must have the intention to make it-animus testandi-when he or she executes the will. Both capacity and animus testandi are required. In d’Eye v Avery, it was held that capacity was a general ability to do something, whereas knowledge and approval required an awareness and appreciation of a specific instrument.8 Civil Procedure Rules 1998 specify lack of knowledge and approval as one of the grounds for alleging that a will is invalid. 3. Apart from capacity and knowledge, the will must satisfy formalities set under section 9 of the Wills Act and as interpreted in the case law. First, a valid will must be in writing except for privileged wills. The phrase, ‘in writing’ is not defined but has been interpreted to capture various modes of presenting written words into visible forms. Any materials may be used, provided permanent. For example, in Hodson V Barnes, an eggshell was held acceptable. To add, it can be written in any language or code, provided that it can be deciphered.9 Secondly, the ‘testator or some other person in his presence and by his direction’10 must sign the will. In Hindmarsh v Charlton [1861] 8 HL Cas it was held that ‘there must either be the name or some mark which is intended to represent that name’. Section 9(b) necessitates that the testator must have intended that his signature gives effect to the will. Thirdly, the will must be witnesses. Section 9(c) provides that the signature must be ‘made or acknowledged by the testator in the presence of two or more witnesses present at the same time’. The witnesses must be both mentally and physically present. To add, the will must be attested. Section 9(d) provides that each witness to either attest or sign the will, or to acknowledge his or her signature in the presence of the testator. The witness must witness the operative signature of the testator. A witness may acknowledge a previously made signature through demonstrating through words or conduct that he accepts the signature as his own. REVOCATION OF A WILL Wills are revocable and can be revoked by the testator at any time before to his death. Section 18(1) of the Wills Act provides a general rule that a will shall be revoked by a testator’s subsequent marriage. However, marriage shall not revoke a will if it appears that the testator was expecting to be married to a particular person and he intended that the marriage should not revoke the will. Secondly, the testator may revoke a will wholly or partially through another will or codicil or by some writing executed like a will.11 The subsequent will must expressly show an intention to revoke the earlier will. As such, it must contain a revocation clause. However, even if the will does not expressly revoke prior dispositions, it can do so impliedly to the extent of any inconsistency. Extrinsic evidence is always admissible for establishing implied revocation. That is a later will prevail in case of a conflict. The later will must also have been validly executed pursuant to the Wills Act. In the Goods of Hodgkinson,12 it was held that originally revoked, say X will remains revoked if the revoking will, Y, is itself revoked by Z. in this case, X cannot be revived. Finally, a will can be revoked, under section 20, by some writing declaring the intention to revoke it. In the Goods of Durance, 13 it was held that it can be a letter signed by the testator and witnessed as required of the will. In this scenario, therefore, following the first will, the testator made a second will in May 1980 which materially digressed from the earlier will. Consequently, even if the will had been not revoked by a subsequent marriage, it would be revoked by the will of 1980 because it was inconsistent with the later will. Considering the effect of the letter dated 1988, it sought to revoke, impliedly the earlier will, through distributing the will to other dependants. Under section 20 of the Wills Act, and as held in Goods of Hodgkinson, it could revoke the earlier wills provided it was executed as required in the Wills Act. Nevertheless, it fails in material respects. It was only witnessed by only one witness. Section 9(c) requires that the will should be witnessed by two or more witnesses present at the same time. Consequently, it was not validly executed and, therefore, it cannot purport to revoke the will of 1982 by making 1980. However, in the present case history, David made the first will in November 1977. He subsequently divorced, and married Maria in 1979 and married Emma in 1982. The second will was also made in 1980 prior to his marriage to Emma. Consequently, the marriage of 1982 revoked the first and second wills, because the testator at the time was not expecting to be married to Emma. In essence, therefore, David died without leaving a valid will, meaning that the rules of intestacy will apply to his estate. The rules of intestacy apply where the testator dies without leaving a valid will like in David’s case. The case history depicts a total intestacy, which occurs where the deceased dies without leaving a valid will or leaves a will that makes no disposition.14 The deceased personal representatives, normally the spouse or close relatives holds the estate in trust with power to sell it. The personal representatives are required to first pay all the funeral expenses, testamentary and administrative expenses, debts and other liabilities and then distributing the residuary estates per the provisions of section 46 Administration of Estates Act 1925 (AEA 1925). First, rule applies like in David’s scenario where there is a surviving spouse. Whether a person is a spouse, is determined by general principles. The spouse must have survived the deceased by 28 days.15 Maria is divorced and, therefore, shall not fall under the term surviving spouse. The distribution of the estate depends on whether the deceased was survived by an issue. Where the deceased is survived by a spouse and issues like in this scenario, the spouse(Emma) is entitled to a statutory legacy of ?125,000, with interest at 6 per cent per annum payable from date of the deceased’s death until the legacy is paid the intestate’s personal chattels absolutely a life interest in half of the residue. Pursuant to section 55 AEA, Emma shall be entitled to David’s jewels and clothing, in addition to the statutory legacy, because they are personal effects. The issue will take the other half of the residuary estate plus the ‘remainder’ in the spouse’s life interest (if it has not been capitalised).16 Issue comprise the lineal descendants – male or female– of the intestate including illegitimate, legitimated and adopted issue, but not stepchildren. In this scenario, therefore, it shall include both the children of Emma and Maria. Pursuant to s.47 (1) AEA 1925, the issues shall take in equal shares. In this scenario, the matrimonial home was owned jointly by David and Emma. Consequently, the house should pass to the survivor, Emma, under the principle of survivorship- ius accrescendi. Joint tenancy applies where each joint tenant owns the whole of the property jointly, and no party can claim a specific share in the property while the tenancy continues. Where one of the joint tenants dies, the surviving one takes the whole property automatically, by the operation of the law. Consequently, such property does not form part of the estate for purposes of the will. Therefore, the house shall not be considered to be part of the estate for the purpose of intestate succession and shall be wholly owned by Emma. With regards to David’s grandchildren, they cannot inherit from the estate unless either their parents predeceased David, or where their parents were alive at the time of David’s death but dies before reaching the age of 18 without having married. Only in such a scenario, would they inherit in the shares their parents were entitled. The other relatives such as brothers and sisters will not inherit because there is a spouse and issues left. However, any party that is left out of inheritance has recourse to court to ask for a reasonable provision. This applies where the person was a dependant of the deceased prior to his death. The party alleging must demonstrate dependence to the court which may order a reasonable provision in terms of a regular payment or a lump sum. With regards to the life Assurance, it shall bypass the probate and pass to the named beneficiary. Consequently, the David life assurance shall pass to the person he has nominated and shall consequently not be regarded as part of the estate. It shall be thus essential to establish the personal property of David’s estate because it shall devolve absolutely to his spouse. Personal chattels are defined in s. 55 AEA 1925 which lists a wide range of chattels to include ornaments and articles of households or personal use, but excludes money and security for money and chattels used for business purposes. Consequently personal clothing and jewels fall under this category. However, the business net value and cash in bank do not fall under this category. However, the status of the motor car shall depend upon the use in which David put it. In Chaplin,17a large yacht used for private pleasure cruises was held to be an ‘article of personal use’.18 In a Canadian decision of Re MacCulloch’s Estate, 19the court held that the dominant use of the chattel at testators determines whether the chattels were used for business purposes or otherwise. Therefore, the dominant use of the motor vehicle shall determine whether it was a personal chattel for intestate succession. Pursuant to the Probate and Administration Act 1898 and the Succession Act 2006, where one died intestate, their property remains with the Administrator, who ought to distribute the estate as provided for under the rules of intestacy. The law of intestate succession is based purely on blood relations. Since Emma is the surviving spouse, part of the deceased estate shall vest in her, the deceased estate also goes to the children equally, that is, if a child has predeceased the testator. Children’s Act (1960), gives an adopted child same rights of succession in the estate of his adoptive parent as a natural child has. The court has the power to appoint an administrator or adminitratix for the estate of the deceased. Normally, the court appoints the person who takes the largest share and in this case it shall be Emma. Nevertheless, the law empowers the court to validate a document that the deceased intended as a will. Wills Act 1997 empowers the court to validate documents, for deaths occurring after July 1998, that the deceased intended as a will but which was not yet signed by the will maker in the presence of 2 witnesses20. The applicant must prove on the balance of probabilities that the deceased intended the document to be the last will. The Supreme Court is now empowered to under section 9 of the Wills Act to admit to probate documents that are not executed in accordance with the formal validity requirements for execution of the will, discussed above. For court to make such an order, it must be shown that the document exists, that the document sets out the testamentary wishes of the testator and that the testator intended the document to be the last of his will. Consequently, the letter dated 1988 can be admitted to probate. Consequently, the estate shall be distributed according to the wishes of the testator. Succession laws technically give a testator total freedom to make a will disposing of any of his property by will to whomsoever he wishes. This is called testamentary freedom. Any other person who is not provided under the will can only apply to the court to make a reasonable provision. The dependency and family provisions of the Law of Succession Act deal with provision for persons who were dependent on the deceased prior to his death, but after his death find themselves inadequately provided for or not provided for at all in his will. This provisions act as a fetter to the operation of the doctrine of testamentary freedom. REFERENCES Legislations 1. The Wills Act of 1837 s.9, 20. 2. The Law of Succession Reform Act of 1995 3. The Law of Succession Act 2006 (NSW) 4. Probate and Administration Act 1898. Case law 1. Ewing v Bennett [2001] WTLR 249 2. Banks v Goodfellow 3. Symes v Green[1859] 1 Sw&Tr 401 4. d’Eye v Avery 5. Hodson V Barnes 6. The Goods of Hodgkinson 7. Hindmarsh v Charlton [1861] 8 HL Cas Books 1. Cassidy, J, 2000. Mutual Wills. s.l.: Federation press. 2. Crouches, R, 2008. Succession Family, Property and Death: Text and Cases. s.l.:Prue Vines. 3. Haines, D, 2003. Succession Law in South Australia. s.l.:Lexis Nexis Butterworths. 4. Parry D, 2002. The Law of Succession. 9th ed. s.l.:Sweet & Maxwell. 5. William J, 1980. William's Laws Relating to Wills: Precedents. s.l.:Butterworths. Read More