Insolvency of the Law Problem: Law of Succession - Assignment Example

Law of Succession Ans 1) The designated executors of Richard’s will are his daughters Michelle and Sandra. However in this case, both the executors are also dead. When a deceased dies, if no appointed executor exists, then the next of kin will be sought out to administer the trust. In this case, Richard has specifically stated “I appoint my daughters as the executors of my will.” The question that will arise in this regard is whether Julian (Julie) will also be considered as a “daughter” in view of the Gender Recognition Act of 20041 and the fact that Juliam possesses a Gender recognition certificate which recognizes him officially as a female and therefore technically a daughter of Richard? Moreover, Julian will also qualify as the next of kin, since his relationship with the deceased (Richard) and the deceased executors (Michelle and Sandra) is a consanguineous one, or a relationship that is forged through blood ties, rather than by adoption as is the case with Tommy2. However a factor that will have to be taken into consideration is the receiver of the residual estate. It is only when the executor of an estate dies and the personal who receives the residual estate also dies that the next of kin will be sought out. In the case of Richard’s will, he has also specified the residuary of his estate which is to pass to Keith, Sandra and Michelle, Tommy and Julian in equal shares. Since both the women are dead, Keith, Tommy and Julian become the owners of the residuary and are likely to have a claim to become the executors of the estate. Therefore the essential conflict will lie between whether it is Tommy, Kevin or Julian who will become the administrator of the Estate. Under the rules of succession specified within the gender recognition Act, it has been clearly stated as follows: “he fact that a persons gender has become the acquired gender under this Act does not affect the disposal or devolution of property under a will or other instrument made before the appointed day.”3 The appointed day in Julie’s case is 1st March 2006, however Richard has made his dispositions in December 2005, hence the dispositions he has made as of that date will stand and events occurring after that will not have an impact. However, Keith and Richard have become civil partners as of 21st December 2005, before Richard made his will, therefore his intentions are best exemplified on the date that he made the will.. As a residuary of the estate, Keith will be entitled to the proceeds of the estate after the gifts and payments have been made. Richard has also nominated Tommy as his residuary and has specified that they are all to receive the residuary in equal shares. Hence Julian, Keith and Tommy will all be entitled to the residuary shares in the estate of Richard, after all necessary gifts and payments have been made. Although Julie’s claim to be a daughter may not be valid, nevertheless as of the date of making the will, he enjoys equal stake in the residuary as Richard’s issue. Therefore, it is likely that all the three – Keith, Tommy and Julian will be appointed as executors. But in Tommy’s case there is one problem. Tommy is only aged 12, while the Wills Act requires that an executor of an estate must be at least 18 years old, hence this will disqualify Tommy. Therefore, Keith and Julian will become the joint executors of the estate in place of Michelle and Sandra. It is unlikely that Michelle’s husband will have any kind of proprietary interest over the estate, except for any part of the residuary estate which may be left over after all the gifts have been paid out, where Michelle’s share may be passed down to their son. Ans 1 (2): In terms of succession to both realty and personalty, the Administration of estates Act of 1925 has given primacy to the surviving spouse. Therefore the first in line for inheriting the deceased property by interstacy would be Richard’s spouse Sue. 4She would therefore also have the right to possession of the maternal home, which in this case would be the bungalow in old London Road.5 However, the fact that will be crucial is the date of the divorce – 14th November 2005. Since Richard made his will on 31st December 2005 and died in April 2006, this has happened after the divorce decree is final. To qualify to inherit Richard’s property, Sue must be the surviving spouse, however where a decree of judicial separation is in force at the time of the deceased’s death, the surviving spouse cannot take over the property, because she will no longer qualify as a party to the marriage.6 Moreover, the house was not held on joint tenancy but was solely owned by Richard and will therefore become a part of the residuary estate. However, if Sue has lived in the home for several years, she can claim a share from the administrators of the estate, but if she was not living in the house when Richard died, this possibility will not exist. Hence, in regard to this property, the next in line with be the surviving children, who are Julian (Julie) and Tommy, who will both inherit the property jointly. However, in reference to the house at 14a South end Street in Essex, Keith and Richard lived as joint tenants. Para 3 of the Housing Act 1988 (2) states that “For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.” While this provision originally applied only to a spouse of the opposite sex, the Civil Partnership Act of 2004 has ensured that same sex partners may also enjoy the same rights as members of the opposite sex, since a civil partnership is classified as “a relationship between two people of the same sex.7 This was also the issue in the case of Ghaidan v Godin Mendoza.8 Ghaidan Mendoza sought statutory tenancy rights to the property of his deceased partner of the same sex. This facility has been mandated by the Civil partnership Act and since Keith has also been living in the home at the time of Richard’s death, it is likely that he may have a first claim on the property. He will be able to qualify as a spouse under the Civil partnership Act and will therefore be entitled to continue his tenancy and could have also contested for ownership. However, since Richard has specifically made a bequest, stating that the house in Essex is to go to his son Julian, it will be the intent of the testator that will have primacy and it will be Julian who will inherit the property. The fact that he has now become a woman will be an immaterial fact in this instance, since at the time Richard made the bequest, Julian had not undergone the gender change and had also not informed his father about it, therefore to all intents and purposes, he will be the rightful inheritor of that particular property. As far as the ring worth 5000 pounds is concerned, which was to have come to Michelle, the death of the beneficiary would mean that the next of kin would become the recipient. In Michelle’s case since she also has a child – three year old Stephen. The ring does not qualify as realty but personalty. Moreover, the ring is a property that will be classified as one where a vested interest exists, which a beneficiary has the right to take possession of it. Since Michelle has attained the vested interest but has died, the per stripes rule will apply, which states that the vested interest will pass through the breaches of the family and therefore Michell’s issue – Stephen will inherit it9. However in the case of the balance of 6500 worth of jewellery which was to be inherited by Sandra, her death would mean that the next of kin would be sought, who would be her surviving brothers. In this context, Julian as the flesh and blood brother is likely to enjoy precedence over Tommy in inheriting the jewellery. As stated before, Julian’s status as a woman (Julie) is unlikely to affect the dispositions made by Richard on 31st December since the gender recognition certificate was not acquired by Julian until March 2006. Sandra was not married, otherwise her spouse would have had the first rights to the jewellery. Therefore, the next in line will be a brother or sister “of the whole blood”. Since Sandra and Julian are both the children of the same parents – Richard and Sue, Julian (Julie) will be the rightful heir, while Tommy on the other hand has been adopted and since consanguinity will play the deciding role in inheritance of the interstate, Julian (Julie) will receive the jewelery10 Richard also has cash investments worth 80,000 pounds. Of this, he has set out 10,000 pounds for Tommy, therefore this will be deemed as a vested interest which will be set aside for Tommy before the rest is deemed to be a part of the residuary estate. Ans 1(3) Section 6(2) of the Wills Act of 1837 sets out the formality requirements in executing a will and clearly states that the will must be signed by the testator in the presence of two witnesses. Section 9(1) clearly states that if the formality requirements are not adhered to, even in the slightest aspect then the will could be invalidated. For example in the case of Re Colling11 a will was deemed to have not been validly executed because one of the witnesses – a nurse- had to leave the room before the testator finished signing. However in this case, Richard has executed the will validly. The formality requirements have been designed to provide probative safeguards and to ensure that testators have freely made their dispositions, which may be ensured by the presence of witnesses. An attestation clause is one where a witness to a will certifies that the will has been signed before him/her and how that will has been signed. For example, an attestation clause will have to clearly and specifically state in no uncertain terms that the witnesses has seen how the acknowledgment of the requirements in the will has been made and signed and that the testator was in full possession of his faculties. The purpose of an attestation clause is to ensure that witnesses are not later called upon to prove that they witnessed the signature by giving evidence through an affidavit, all of which could prove to be an expensive effort. A will that already has an attestation clause affixed at the time the will was signed by the testator will ensure the probative value and be acceptable to the Registrar when the will goes to probate. However, while an attestation clause is desirable, it is not strictly necessary. The Wills Act clearly states that when the will has been attested by the witnesses in the presence of the testator, “no form of attestation shall be necessary.”12 Hence this essentially means that an attestation clause may have considerable practical and probative value in terms of the execution of the formalities requirements, it is not strictly necessary and a will cannot be invalidated for the mere absence of an attestation clause. In the context of strict adherence to all the formality requirements for wills, Professor John Langbien has argued that so long as a will substantially complies with the requirements for execution of wills, then it should be allowed to go to probate.13 In Richard’s case the will has been executed according to the formality requirements laid out in Section 9 of the Wills Act which includes signing it in the presence of two witnesses, this may be considered adequate to meet the requirements of validity for the will, since it substantially complies with the formality requirements. In fact Section 9 (2) of the Wills Act does allow for provision of evidence where all the formalities requirements have not been met, to show that a will represents the intention of the testator and if the Court is satisfied that the dead person intended the will to represent his/her desires, then it will be deemed to be valid. Therefore, in view of the foregoing, it appears unlikely that the absence of an attestation clause will affect the application for a grant of representation, since the will as executed by Richard will be deemed to be fully valid. Q2. On the basis of the above, the estate of Richard will therefore be distributed as follows: (a) The bungalow at Old London Road: Tommy and Julian, although Sue as Richard’s former wife can make a request of the executors for her share because she has lived there for so many years and made a contribution to raising the children. (b) The house at Essex: Julian (Julie), although Keith will remain a joint tenant (c) Engagement ring: Michelle’s son Stephen (d) Rest of jewellery: Julian (e) Cash investments will be distributed as follows: 10,000 pounds to Tommy. 6250 pounds will be used to pay off Richard’s outstanding loans. This will leave a balance of 63,750 pounds which will be distributed equally between Tommy, Julian and Keith, although Tommy’s share of the money will be kept in trust by Keith and Julian as the executors of the estate. Ans 3: It may be noted that as far as succession is concerned the Gender Recognition has not made any significant impact or change to the existing rules. Section 15 Cleary indicates that the provisions of the Wills Act will have precedence over any claims arising out of a gender recognition certificate and the question of the date when the change is made is very relevant. The major issue is that when a will is made, the state of matters as existing on that date of making of the will is what will determine the entitlements under the Act rather than any claims arising out of the Act due to change of gender. In fact Section 17 of the Gender recognition Act also states that a trustee: “is not under a duty, by virtue of the law relating to trusts or the administration of estates, to enquire, before conveying or distributing any property, whether a full gender recognition certificate has been issued to any person or revoked (if that fact could affect entitlement to the property” Therefore, in effect, the Act has clarified that the administration of an estate in terms of succession and inheritance will be determined by the entitlements that have spelt out in the will and verification of possession of such a certificate is not necessary. This provides an indication that the Act is unlikely to have a significant impact upon the rules of inheritance or change the manner in which entitlements are made. It is the manner in which the entitlements are stated in the Act which is of significance rather than the provisions of the Act or the possession of a certificate. Bibliography * Borlowski, Andrew, 2004. Succession London: University of London Press * Civil Partnership Bill [HL} [online] available at: http://www.parliament.the-stationery-office.co.uk/pa/ld200304/ldbills/053/2004053.pdf * Intestates’ Estates Act 1952 * Langbein, John, 1975. Substantial compliance with the Wills Act 88 Harvard Law Review 489 * Matrimonial Causes Act 1973 * Gender recognition Act of 2004. [online] available at: http://www.opsi.gov.uk/acts/acts2004/40007--a.htm * Ghaidan v Godin Mendoza (2004) UKHL 30 * Re Colling [1972] 1 W.L.R. 1440 * Re White [1990] 3 W.L.R. 187 * Wood v. Smith [1991] 3 W.L.R. 514 * Wills Act of 1837 Read More