Requirements for a Will to Be Valid - Essay Example

?Property Law Property Law A will is a legal document that allows someone to or dictate who will receive his estate and how much of the estate will go to any specified personi. The person that draws a will is by law referred to as the testator, and they may leave the management or ownership of the estate to more than one party. The purpose of drafting a will is to distribute a person’s wealth upon that person’s death. In common law, a will only referred to the document that disposes of real property while a testament was the term that was used in the disposition of personal property. However, in due course the differentiation between a will and a testament has become thin, and people use the term, will, to refer to a statement that both disposes of both personal property and real property. In the event an individual dies without drafting a will, the state proceeds to distribute the person’s estate in accordance with the laws of Descent and Distribution of the person’s stateii. The significance of a will is diverse from the fact that it gives the drafter a chance to choose the people who will be heirs to his property. It also allows the testator to decide the people who will execute their estate, and using fairness in distributing their wealth, in place of the court appointing a stranger to allocate the estate to the family. Another importance of a will is the fact that the testator can protect the interests of the people close to him, and those of his children in choosing who their guardian would be in the event of the testator’s death. When writing a will the law requires the testator give information as to who will take care of their children incase the stated guard dies before the execution of the will. This may include the other benefactors of the will in the event they die before the execution of the will. For these reasons, there are several elements that the law places as a requirement in order for the will to be valid. The exception of the elements below presented, the court may decide a will is invalid if there is evidence the testator was under duress in the process of drafting the document. In addition to this, if there are elements of fraud or a mistake was made during the writing of the will, or the dead person wrote the will by mistake, then the document is deemed invalid. Requirements for a Will to be Valid The first requirement is that the testator, the person making the will must declare himself as the testator and that he revokes any previous will either express or impliediii. The person should also have the mental capacity to make a valid will at the time of drafting of the will. The person making the will to be accepted by the law as making a valid will through mental capability must be at least 18 years and above, bar for any exceptions provided for by law. Another indication of whether the person has the capacity to make a valid will is that they ought to be of sound mind, understanding, and memory. This is to mean that the person ought to be aware of what they are writing and its implications. It is essential to note that the Mental Capacity Act of 2005 does not have provisions for invalidating a will; that has already been prepared by an individual of unsound mind. There is normally the assumption of intention, in that if a will is validly executed and the person is of sound mind during the process of execution. This is the third requirement of a valid will; that the testator must have an intention to dispose of their properly as per the will upon the testator’s death. The third requirement is that there should be no traces of undue influence, force and/or fraud. If the court can establish that the testator was either pressured into making the will, or if the execution of the will was through fraudulent means, then it may set aside part of the will, or will in its entiretyiv. It is mandatory for the testator to sign the will or have someone sign it for them; the will must not be necessarily in writing. In most cases, it is the testator, who signs the will in the company of two witnesses, and in the event of alterations, the alterations must be appropriately executed otherwise they remain invalid. The two witnesses should sign the will, as well, in the presence of the testator, and the witnesses must be at least above 18years. When drafting the will, the testator ought to know that the witnesses and their spouses should not be part of the benefactors of the willv. It is advisable that the testator updates the will after every five years on after going through key changes in their life. The changes may include getting married, divorced, going through separation from a spouse, or having a baby. In addition to this, the testator should also update their will after purchase or sale of a notable property like houses and companies. Further to this, the will can be reviewed when the executor of the will dies. The process of amending the will can only be done by making an alteration through official channels; the alteration is called a codicil and it there must be witnesses available just as making a will. Finally, it is vital to be exact and straight to the point, leaving no room for interpretation by the people left after one is dead. The testator must state that they are of sound mind at the time of writing the will to avoid any doubts that may arise. In addition, the executor of the will ought to be stated by their full names. The writer must also state that they are revoking any previous wills, either implied or express that they might have created in the past. An Analysis of each Disposition in the Will and Recommendations on Changes When drafting the will, the testator must avoid ambiguous words such as a considerable amount, or as much as possible. The testator must use complete figures and give a statement that clearly explains what their intentions are when drafting the will. This is to ensure that the will is not open to different interpretations by the heirs. Where the testator is not sure of the exact figures involved, they ought to use percentages of ratios so that there will be a guiding factor when sharing the estate. Using terms such as reasonable income may create confusion because what is reasonable to one person may turn out to be unreasonable to another person. In addition to stating the exact amount of money and size of the estate that should go to each benefactor, the testator ought to be precise about the benefactors, as well. Therefore, disposition one and 11 must be changed to include actual figures and names of people. Statements such as “amount to be shared, “among my friends and family,” ought to be avoided at all costs. This is because the testator should state his friends by name to avoid strangers claiming to have been the testator’s friend. In disposition 2, the testator must decide what he wishes John should do with the money as concerns the Canterbury Christ Church University instead of saying “what is right.” This is because the church may claim what is right to John may be wrong to the testator. The third, fourth, and fifth dispositions are not confusing and, therefore, no need to edit the dispositions. If the testator owns pets, as is evident from disposition 6, it is advisable they leave the pets in the care of an entity, and state the sum of money the individual should get to assist in maintenance of the pet. The testator should not plainly state money that goes to the upkeep of the pet, without assigning it a guardian. The testator must be careful not to assign his estate into illegal or controversial activity such as fox hunting in disposition seven. They may, however, pick a different sport or distribute the money to other benefactors. In disposition 8 and 9, he must state which institution or person he intents to have the money in order to fund the campaign for free speech and the research of the 50 letter alphabet respectively. In disposition 10, he ought to state the exact amateur sports he intends to fund, and by how much without leaving gaps for his benefactors to fill. Disposition 12 is valid the way it is, and can be left like that for the benefactors to decide. Legal Authority and Principles of Law The Intestacy Rules in England and most of the Commonwealth take effect when a person dies without leaving a will in accord with the Inheritance (Provision for Family and Dependants) Act 1975. This provides for most of the person’s wealth to go to the spouse, and the rest to be shared among the children. The sharing of wealth follows the principle of blood proximity, and dependency, as well. In relation to fox hunting as mentioned in the will, The Hunting Act 2004 (c 37) passed by the U.K parliament to ban hunting of deer and foxes. In the case of Kostic v Chaplin & Ors, the court overturned the awarding the Conservative Party a part of his estate because Branislav Kostic’s son convinced the court that his father was of unsound mind when preparing the will. This shows that the court can make a will be invalid as per the requirements earlier stated. This was a violation of Section 9 of the Wills Act 1837. References Dyson, Henry. French property and inheritance law: principles and practice. Oxford: Oxford University Press, 2003. Haman, Edward A. How to write your own living will 4th ed. Naperville, Ill.: Sphinx Pub., 2004. Read More