UK-Law Succession Issues - Coursework Example

? UK LAW- SUCCESSION Question A grant is one of the most principal components in any probateprocess. In the absence if a grant, it’s hardly possible for personal representatives to have the authority to collect funds from banks, sell property of the deceased and act on the property in any other crucial tasks. A land registry for instance cannot mandate the sale or transfer or interests in land without a grant unless it is held as joint tenants. Similarly, building societies and banks in order to release funds demand for a certified and stamped copy of the grant. However, circumstances exist whereby the requirement of a grant can be waivered. In the first place, where the value of the estate is worth ?5,000 or less, secondly, where the value of the estate is greater than ?5,000 but has neither a house, shares nor any bank account, with more than ?5,000. Further, a grant of representation will not be necessary where all houses, bank accounts and other assets had been under joint tenancy. The estate in question in this case is one that is above the value of 5000 and an asset in form of a bank account worth ?7800 thus making a grant necessary and not susceptible to the first two exceptions. It should however be noted that part of the deceased estate viz a house worth ?400,000 was jointly co-owned with the surviving spouse Andrea, broaching out a significant legal implication. Thus the issue is whether or not a grant of representation necessary in this case. W Swadling, ‘Property: General Principles’ poses that where two co-owners of a property, if they co-owned a house under joint tenancy then the surviving co-owner shall take ownership of the deceased share automatically through jus accrescendi regardless of any will or rule of intestacy. As such the property co-owned may not be subject to any grant of representation. However going by the treatise on Intestacy and family Provision claims on death, UK Stationery Office at para 7.73, this right of survivorship is not always automatic. Section 9 of the Inheritance (Provision for Family and Dependants) Act of 1975 holds that the court retains the discretion to order that the deceased share be dealt with as part and parcel of the net estate for reasons of creating a family provision order. The question that arises therefore in relation to the rest of the estate is what type of grant is accruable to whom and what share of the estate ought to be provided for the representatives. There exist three types of grants viz, grant of probate, grant of letters of representation and grant of letters of representation with Will annexed. A grant of probate only applies when the deceased has left a valid will appointing one or more executors to perform duties regarding the estate as provided by the will. Only the appointed have the right to ‘prove’ the Will. In the current case, Peter died without a Will and therefore no appointed executors and thus no one among the persons with interest to the estate can apply for a grant of representation to probate. Similarly, a grant of representation annexed with a Will, requires first that the deceased ought to have died with a valid Will, having appointed an executor but that the executor is unable or unwilling to apply for the grant then an applicant may be granted. Thus the type of grant that is applicable in this case is that called ‘grant of letters of administration’. This is because the deceased died intestate. The persons (or would be administrators) entitled to this grant are commonly one or more of nearest relatives alive. It is important to note that any of these types of grants could be classified as either general or limited grants. There exist two extensive procedures on how to apply for probate or administration. First is by way of employing a solicitor to undertake the process on the person’s behalf. Secondly is by applying on one’s self via the Personal Applicants Section of the Probate Office, or one of the District Probate Registries. One can so apply to a Dublin Probate Office for the grant where a person has died anywhere in Ireland, or abroad. When one applies to the District Probate Registries the deceased should have had a fixed residence in the jurisdiction of the registry in question. Distribution of Estate Andrea, the spouse; Since Peter died after February 1, 2009 her spouse is entitled to personal ‘absolutely’ chattels of net sum of ? 250, 000 under s 55(1) of the administration of estate act, which includes motor car worth ? 12,000 and jewellery worth ? 600, added to the value of the house jointly owned worth ? 400,000 totals to ? 412,600. The adopted daughter is treated similarly as the rest of the children who get equal shares each. The daughter who is 17 years shall not get her share until she attains the age 18 is when she can revoke the trust. The remaining residuary sum is also to be distributed in equal share to be rest of the family. Question 2 The formal requirements for a valid will are encapsulated by s 9 of the Wills Act 1837 as overtaken by s 17 of the Administration of Justice Act 1982. The consequential essence of these formalities as set out by the statute is that if a will does not feature such basic formalities then it is deemed invalid and incapable to be admitted to probate. The substituted Section 9 states that a will shall be valid if it contains the following ingredients; 1) It is in writing, and signed by the testator or by some other person in his presence and by his direction and; 2) It appears that the testator intended by his signature to give effect to the will; and 3) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; 4) Each witness either- a).attests and signs the will; or b).acknowledged his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary. It is however important to note that variant formalities exist in cases of statutory wills of mental patients and that a privileged testator may create a valid will informally. The requirement of writing A will is not a will unless and until it is reduced in writing. It may be in the handwriting of the testator or any person or be typewritten or any nature of printing or even as produced by a photographic process. The writing if done by ink, pencil or produced by any means other than these must be essentially visible. If ink and pencil are combined such writing broaches rebuttable presumption that the inscription by the pencil were solely deliberative and would thus be excluded from admission to probate if evidence that the testator intended finality on them is not present. The requirement of signature The law on signature of a will is liberal, technically. Any inscription or mark can constitute a valid signature. The test to this is that it must have been intended by either the testator or testatrix for it to be their signature. The legal practice has held that testators employ their commonly used signatures to clear any shadow of suspicion as to the legal validity of the signature. Some of the marks that have been recognized by the law to amounting valid signatures include; a set of initials (per In the Goods of Savoy-1851), a mark created by a rubber stamp accompanied by the testator’s name (per In the Goods of Jenkins-1863), and even a thumb print of illiterate individuals (In the Estate of Finn-1935). In the Estate of Cook (1960) it was settled that a signature does not need to constitute any name. in this instance, a document which had final words reading ‘your loving mother’ were deemed admissible to probate on the grounds that it had been intended to infer to the name aforementioned in the document. In Re Colling (1972) before the testator had finished signing his name on the will one of the two present witnesses left. In this case, the will was deemed incorrectly executed in defect of the requirement under the substituted section 9 of the Wills Act which calls for the presence of two or more witnesses to be present. In principle, the mark or writing purported to be the signature has to be finished in the manner that the testator completed it as much as he intended it to be a signature. Where a testator become weak to continue in finishing the signature of her name and only had ‘El Chal’, the court admitted it as signature on the reason that, at that point she had intended to end her signature and thus it was deemed complete,(In the Goods of Chalcraft-1948). Signature by persons other than testator In this case, the signature will only be valid if it is made ‘in their presence and by their direction’. The term ‘presence’ denotes that a signature be made in the presence of the witness and if they are at a position that they could have seen the testator in the act of signing. The testator in signing must be mentally and physically present at the material time. Unlike the original s 9 which demanded that the signature be ‘at the foot or end’ of the document, the substituted section 9 sees sufficiency even when ‘it appears that the testator intended by his signature to give effect to the will’. In Wood v Smith (1991), the court admitted a signature written at the top provided it was part of the transaction; it could be valid even when written before the rest of the will. In the light of the aforestated authorities, the effect of a will that fails to satisfy the formal requirement of a will is that it will not be admitted by the courts to probate. The deceased property in this case is subject to the rules of total intestacy which applies where one has made no will at all or has revoked any wills or as in the instant case, the will is invalid. Question 3 The essence of making a will is to ensure that the estate that is left after one’s death is dealt with in a manner that is judicious per the terms of the Will and that which will ensure that the purported beneficiaries freely to exercise all due rights pertaining the property in question without unjust internal and external interference or infringement (Kerridge, 2009)1. With regards to the case at present, David intends to draft a Will which shall have the effect of having Stella, his spouse the sole Executor of the will, having the right to own all the property that David poses. Meanwhile, the undisputed facts are such that his already aged father is presently well provided for financially in his own right.On the advantageous prong, the fact that Stella is David’s wife will on application acquire the undivided estate since she is the sole executor and beneficiary as per the will that David purports to draw. On appropriate circumstances where the surviving spouse has no children nor a there no other descendants, the practice has been that all the wealth or estate escheats to the spouse. It will be therefore advantageous to put all estate of David to the spouse if such as in this circumstance it can be ascertained that the other only remaining beneficiary is already at a better position, financially. It will be a reverse of the clock of logic and justice to encapsulate equal shares to the father who is already aged and in good financial capacity in his own right. It will also be costly in instigating probate procedures enabling the determination of the rights and duties regarding the David’s estate if it could on the other hand be cumulatively administered by a sole executor, the spouse-Stella. Bibliography Blackstone's statute book R Kerridge; The Law of Succession,12th ed,2009, SWEET & MAXWELL. Read More