Succession: Wills Act and Validity of the Same - Case Study Example

QUESTION 1000 Words) Patrice Crooks (aged 34) makes an appointment to see you about a number of problems that she has been having. She tells youthat she lives with Joel (aged 34) and their twin boys Paul and Henry aged 13. Joel has just asked her to marry him but Patrice is no longer sure she wants to remain living with him. Patrice wants to know what will happen to her assets in the event of her death if she does not make a Will. The home they share is currently worth 250k and there is mortgage of 120k. It is owned by Patrice and Joel as tenants in common. Patrice also has some jewellery worth approx 10k and a flat, worth about 110k with no mortgage, in the names of both Patrice and Joel as beneficial joint tenants. a) Advise Patrice on who would inherit the property/assets on her death; and b) Advice Patrice on who would inherit the property/assets if she dies after marrying Joel. N.B: This first question is more about Succession: Wills Act 1837 and validity of the same, probate practice, obtain a grant, oaths and Intestacy under Intestacy Rules (Administration of Estates Act 1925) and Inheritance(Provision for Families and Dependants)Act 1975. On the death of Patrice and she made no Will or testament, her two kids can be a representative of Patrice or if the husband or Joel is still alive, he could inherit the property provided that Patrice allows him to represent her. At this point, there can be no other choice than him if by the time of Patrice death the kids are still minor. If in case, they are old enough, Joel, being the person alive at that time can choose one of the kids to represent their mother. Joel had been Patrice civil partner for a time, though she is not ready to marry him, he can represent for her. If on the other hand Patrice marries Joel, he will represent her on her death for they were married any way, either civil or church wedding. As per Will Acts of 1837 states: If no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent as in the case of freehold land and see simple; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. The only legal estates now capable of subsisting in land being an estate in fee simple absolute or a term of years absolute, estates pur autre vie can now only subsist in the equitable interest in land, legal life estates being abolished (Law of Property Act, 1925) (c. 20), section 1(1), (2), (3), Vol. 15 title Real Property, p.177) As to special occupancy, see section 1 (1) of the Administration of estates Act 1925 (c.23), Vol.8, entitled EXECUTORS AND ADMINISTRATORS, p 306, by virtue of which real estate to which a deceased person is entitled for an interest not ceasing on his death devolves from time to time on the personal representative of the deceased, in like manner as before the commencement of that Act chattels real devolved from time to time on the personal representative of a deceased person. In early times a married woman was incapable of a will. Her will of land was declared void by statute (Stat. (1542-3) 34 & 35, Hen. 8, c.5 (now repealed)) Her will of real property was equally invalid, not merely because marriage was a gift of real property to her husband, but because in the eye of the law the wife had no existence separate from that of her husband, and no separate contracting or disposing powers. In course of time, however the rule was modified, and at the time of the passing of this Act, a married woman, had some, if also restricted testamentary powers. But since 1837 a married woman's capacity to make a will has been very greatly increased, in consequence of statutory enlargement of the subjects of separate estate, and of the provisions of, s. 3 of the Married Women's Property, Act 1893 ( c. 63), Vol. 9, title Husband and Wife p. 385, which extended the operation of s. 24 of this Act p. 445, post, to the wills of married women made during marriage. By the Married Women's Property Act, 1882 (c.75), Vol. 9 title Husband and Wife, p 374, it was provided: (s.1 ) that a married woman should in accordance with the provisions of that Act be capable of disposing by will of any real or personal property as her separate property in the same manner as if she were a feme sole and (s. 2) that every woman who married after the commencement of that Act (January 1, 1883) should be entitled to have and to hold as her separate property and to dispose of in manner aforesaid all real and personal property which should belong to her at the time of marriage; or, should be acquired by or devolve upon her after marriage. And by s. 37 of the Law of Property Act, 1925 ( c. 20) Vol. 15 , title Real Property p. 214, it was provided that a husband and a wife are for all purposes of acquisition of any interest in property under a disposition coming into operation after the commencement of this Act to be treated as two persons. QUESTION 2: (1000 Words) Rollin' Stones is an unlimited partnership. The firm is in the business of landscape gardening. There are five partners in the firm: Brian, Charlie, Keith, Mick, and Bill. The following matters have recently come to the attention of Brian and Charlie: . Mick has been running a rival business in a town 25 miles away and that he made 10,000 in profits from the rival business last year. . It is widely rumoured amongst the partners that Keith is about to be declared bankrupt. There is no partnership agreement between the partners in Rollin' Stones. . In January 2008, Rollin' Stones entered into an agreement with Rock On and Co. whereby the two organisations jointly purchased 5,000 paying stones from Basalt Ltd and sold them at a profit. The profits from this venture being shared equally between Rollin' Stones and Rock On and Co. Mick now argues, that a result of this joint venture, Rollin' Stones and Rock On and Co. have been legally joined together into one single entity. I.e., there is now one partnership, whereas there used to be two. . Finally, last week, Bill was declared mentally incompetent and at present, is being kept in a secure psychiatric hospital. Doctors are of the opinion that Bill may never make a full recovery. Advise Brian and Charlie in relation to the above matters. N.B: This question is more about Business Law and Practice; Be able to identify a Partnership (Partnership Act 1890) and a company, and be able to show an understanding of the procedures involved in setting up the two, including the advantages and disadvantages of combining of two businesses, running the business as a partnership or limited liability company (See; Limited Liability Partnership Act 2000). This case shows that though there were five members in the company, it was not mentioned that they are partners, they just put up the business without a contract among themselves and so it was not so clear that the five members can be called a partnership or a corporation or a company. Keith, Mick and Bill may just be called investors not partners actually because one of them had a rival business, it just goes to show that he is not really a partner because if he had been one of the partners, he would have had a share to the profit of the company which was not mentioned in the case study. Among the five members, a clear partnership may just be between Brian and Charlie and not between Mick, Bill and Keith, they just appear to be investors as there was no mention of them having a share of the Rollin' Stone profit. For Brian and Charlie, Mick, Keith and Bill, if they consider themselves as partners, there should be a contract that they would sign as a proof of their partnership because if no contract had been signed, it would indicate that they are not really partners but only investors. Partnership may only occur when a contract signed by each member is imposed. For Brian and Charlie, if they wish to make Rollin' Stone a partnership, all persons who wish to become their partners should be given a contract that being partners, they should have a contract imposed and signed so that they would be identified as members of the partnership. Explanation: Partnership is a relation which subsists between persons carrying on a business in common with a view of profit. A Company as defined in the dictionary nearest to the business world is "the members of an enterprise not specifically mentioned in the enterprise's title". (Nature of Partnership) The relationship between members of any company or association which is registered as a company under the Companies Act 1862, or any other Act of Parliament for the time being in force and relating to the registration of a joint stock companies; or formed or incorporated by or in pursuance of any other Act or Parliament or letters patent, or Royal Charter is not a partnership within the meaning of this Act. (Companies Act 1862) If several persons are registered as joint holders of any share, any one of each person may give effectual receipts for any dividend payable in respect of such share. Every member shall on payment of one shilling , or such less sum as the company in general meeting may prescribe, be entitled to a certificate, under the common seal of the company, specifying the share or shares held by him and the amount paid up thereon. Sources: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1837/cukpga_18370026_en_1 http://www.manches.com/practices/family/article.phpid=124 http://www.companylawclub.co.uk/topics/faq195.htm http://www.opsi.gov.uk/ACTS/acts2000/en/ukpgaen_20000012_en_1 http://www.companieshouse.gov.uk/about/tableA/comm7Aug1862CoAct1862_P1.pdf Read More