The Executive Institutions - Essay Example

The Executive Institutions 1A Executors are appointed by individuals who execute the instructions given by the individuals and take care of the property of these individuals and shoulder the responsibility on behalf of the people who had engaged their services. Their primary duty is to accumulate the assets of the estate, to prepare the required documentation, and to pay debts, taxes, funeral and other costs involved in administering the matters of the estate. They are also responsible for paying gifts and they play a key role in transferring property to beneficiaries. Generally one executor is appointed for carrying out the property issues. If the executor dies then another will be appointed in his place. In executing the will after the death of the property holder, the number of executors appointed will be more than two and up to a maximum of four. Relatives, friends, solicitors, accountants or banks can be appointed as executors. If no person is available to act as an executor then a Public Trustee can be appointed as executor in England and Wales (EQUITY AND THE LAW OF SUCCESSION). Maximum possible care has to be exercised while selecting executors because their job demands an immense amount of work, care and responsibility. Thus the consent of the person has to be sought prior to that person being appointed as an executor. This is a very important factor that has to be taken into account while appointing an executor; because the person appointed as an executor has the right to refuse to act as an executor. In case an executor dies, the remaining executors can carry out the task of administering the estate. If there remain any other executors, legal advice can be sought regarding the procedure to be adopted in administering the estate (EQUITY AND THE LAW OF SUCCESSION). The will executed by Alfonse is valid despite the fact that the executor had not been appointed by her. Administrators perform the same duties and responsibilities as in the case of executors in respect of estates where the owner of the estate did not execute a written will or where the will does not cede an executor or where the particular executor who was referred to by the will or the executor lacks capability to carry out the will or is unwilling to act as executor. Certain legal provisions govern the eligibility to become an administrator (Administrator). 1b In order to make a will enforceable it must be signed. In the law, there are various rules that govern the process of signature on the will. If these rules are not complied with, the will becomes in – operable. For instance, witnesses and their spouses are not benefited under the will. In order to overcome this problem, many people utilize the services of staff working at the solicitor’s office to act as their witnesses (EQUITY AND THE LAW OF SUCCESSION). No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof (Wills Act 1837 (c.26) ) If the witnesses are appointed as Executors the Will is valid as per the provisions of Wills Act 1837 (c.26) 1 c There are certain requirements to make a will enforceable. The testator must be of eighteen years age or above; the will must be made voluntarily and without any influence or duress from any other person; the will must be made by a person who is of sound mind, the testator should be aware of the contents and nature of the will and must be aware of the property in communication and the persons who are being benefited or who are inheriting; it must be in writing; it must be signed by the testator who is making the will in the presence of witnesses; the will must be signed by the witnesses not less than two in whose presence the testator had signed the will and after the testator had signed. None of the witness or their spouses can benefit from a will. In situations where the witness is a beneficiary, the will is valid but the witness cannot inherit under the will (EQUITY AND THE LAW OF SUCCESSION). The testator is required to sign in the presence of two witnesses and the latter have to affix their signatures to the will in the presence of the testator. The witnesses need not be present at the time of the signing of the will by the testator. However, they have to be present when the signature is acknowledged by the testator (Global Wills). 1 d The Wills Act 1837 of the United Kingdom stipulates certain requirements for making a will enforceable and valid. Section 9(a) of the Act requires that the will shall be in writing. Section 9(b) requires the will to be signed at the bottom of every page by the testator or by some other person in his presence and by his direction. Section 9(c) imposes that the testator’s signature must be ratified by the testator in the presence of two or more witnesses who have present at the same time and the witnesses shall attest and subscribe the will in the presence of the testator (EQUITY AND THE LAW OF SUCCESSION). The testator’s signature which is made without ratification by the witnesses is invalid. A will signed in the margin of the first page is invalid as per the provisions of the Wills Act 1837. 1 e The courts deal with wills written in pencil and alterations therein differently. In Simsons v. Simsons (1883), the court held that deeds in pencil are not valid and any alterations therein are to be treated as invalid (Simsons v. Simsons). A lenient view was given for wills and deeds in Williamson v Kennedy (1857) through which the court gave credence to the testators’ meaning. Thus it was held that alterations are valid (Williamson v Kennedy). The same attitude was displayed in Lamont v Glasgow Magistrates (1887), wherein the court held that the entire codicil annexed to the will in pencil was valid in the case of Muirs Tr v. Muir (Lamont v Glasgow Magistrates). However, in Munros Ex v. Munro the court refused to give effect to alterations made to the will in pencil (Munros Ex v. Munro). Consequently, as per the case law discussed above, a Will made in pencil is valid. 2   Making a will is very important even though the testator may not be rich. This is because if a testator dies without making a will then it could become difficult to distribute that person’s property among the family members. In the legal course of distribution, there are certain rules and provisions that govern the process of distribution of money and other possessions. However, this might not have been the intention of the actual owner of the property who died intestate. Cohabitants, unmarried partners and partners who have not registered their relationship may not be in a position to inherit the property from their partner without a proper will. Thus the demise of one of the partners could give rise to financial difficulties to the survivor (Who should make a will). Making a will is also important if the testator had children or other dependants who are unable to take care of themselves. In the will the testator can appoint a guardian to look after such children and the distribution of property to them could be specified at the very outset. Further, legal experts impart advice on the issues pertaining to tax matters in respect of inheritance. Hence, the testator can draft the will with regard to paying taxes and other statutory obligations (Who should make a will). It is preferable to obtain the advice of legal experts regarding the making of a will, wherein the possibility of prospective parties claim for share in property will be considered if they are dependent on the financial support of the testator. If the testator is not a citizen of Britain or the testator lives in Britain but possess property abroad then the solicitors would impart suitable advice, similarly, they would also advice on matters of shares in businesses (Who should make a will). The testator should incorporate all the financial sources in the will. There should be clear details of assets owned by the testator like movable property, liquid assets and fixed assets. Further there should be an inclusion of vehicles, personal belongings, stocks and shares in companies, bank accounts, insurance policies, details of business owned by testator and pensions. The particulars of family members and marital status have also to be incorporated. In addition, particulars of any divorce, remarriage or cohabitation relationship and details of children or dependants must also be listed in the will. Under some circumstances the dependants of the testator could approach the courts in order to review the will if they suspect that they had not properly inherited property from the testator. Therefore, seeking the assistance of a solicitor is essential while drawing up a will (Who should make a will). The testator can endorse in the will details about the funeral to be carried out as per his wishes. Further, the testator can appoint a legal guardian to look after minor children after the demise of testator. The testator can mention the names of people to act as executors of the will. Such, executors could include friends, family members or professionals. After taking all these measures, the testator can draft his or her will. However, its validity requires the testator’s signature (Who should make a will). Witnesses to the will and their spouses cannot benefit under the will. To cope with this difficulty, many people utilise the services of the staff at a solicitor’s office to act as their witnesses. Safeguarding the will is very important and it should be secured in a safe place. Moreover, the testator should inform the executors or close friends regarding the location of the will. In general, testators’ approach solicitors to keep their wills safely with them and accordingly solicitors keep such wills safely in their custody (Who should make a will). In accordance with the foregoing discussion, it is advisable to execute a will in order to avoid any problems regarding the distribution of your properties at a later date. Works Cited Administrator. 10 June 2007 . EQUITY AND THE LAW OF SUCCESSION. 2002. 10 June 2007 . Global Wills. 15 June 2007 . Lamont v Glasgow Magistrates. (1887). Munros Ex v. Munro. (1890). Simsons v. Simsons. (1883). Who should make a will. 10 June 2007 . Williamson v Kennedy. (1857) . Wills Act 1837 (c.26) . 10 June 2007 . Read More