My Advice to Jack, Reddick and Caroline - Essay Example

Lecturer Property Law Part A In legal affairs, property law is defined as that area of law that is meant to govern the many forms of ownership and tenancy in the actual property and also in the personal property, within the scope of the common legal system (Wagner, & Wagner, 1994), (Vranken, et al 2011) and (Sprankling, 2012), . Civil laws categorize property to movable and immovable. Movable are those personal property while immovable are real estate or real property (land). The cases of the three clients; Jack, Reddick and Caroline are obviously complex considering the basis of their entitlement to ownership of the property left by the deceased, Sarah Linden and Mayor Richmond. Each of them claims a share of the property due to the various circumstances that exist and tend to favor each of them towards the inheritance (Finch, 2013), (Emanuel, 2013) and (Finch, & Mason, 2013). As a way of advising them, I have therefore decided to break the case into three categories by looking at the state and circumstance that surrounds each of them to develop premises that can be vital in assisting them own the property. My Advice to Jack Jack should be aware of the following facts on the ground. Jack is the son of the late Detective Sarah Linden. He is fourteen years of age. When the mother got married to Mayor Richmond, he moved in together with the mother in the mayor’s house. Sarah had anticipated her death and thus she left all her property to the Retired Police Dogs Fund. This is dated in 2014 according to the will she and Holder wrote in front of a solicitor. However, this is not the first will she wrote according to the facts presented here. Apparently, before meeting Mayor Richmond, she had been married to Carl. In that marriage they had agreed that incase of their death, their property would be passed to their son, Jack in 2011 (Finch, 2013). Another case that builds is the fate of Holder’s property. Just before he died amidst commotion, holder whispered to Reddick that the money he left him in his will should be used to pay Jack’s university fee. The initial will of Holder stated that he had left thirty thousand Euros to Reddick. Jack being fourteen years of age is a minor. He is thus not entitled to claim any property of the deceased since he is a child. He has to wait until he is eighteen so as to start the process of acquiring the property left under his name by the deceased. As a child, he cannot make sound decisions. He is prone to being irrational and thus must wait until he is an adult. Legally, adulthood begins at the age of eighteen. At that age, he can start making inquiries on how to posses the property left under his name. Meanwhile, he needs to ensure that his property is safe and is well guarded. He can therefore find a relative of his that he can trust to ensure that the wills are not tampered with until he turns the legal age, 18. He has to be cautious with the person he trusts (Roy, 2013), (Pestieau, 2011), (Muhammad, 2011) and (MacNamara, 2013). I would advice for a lawyer to aid him. A question emanates whether Jack is entitled to the mother’s property. According to the will dated on 2011, Sarah Linden and Carl, parents to Jack had agreed that incase of death, their property would be transferred in the name of their son. So this automatically means that should that property exist, it is entitled to Jack. A joint owned property by the two is the one in question here. So Jack can only own what Sarah and Linden owned together. This is because the will was written when Sarah and Carl were married. The will was to take effect in their marriage. However, they divorced and thus the property owned privately or individually by Sarah and Carl is not entitled to jack except for the one the two owns jointly. Jack should thus make inquiries if such property exist and take the needed action (Knight, 2011), (Hirsch, 2014) and (Finch, (2013). The question of whether he is entitled to Holder’s money is complex. Initially, Holder had written a will in front of a solicitor and left thirty thousand Euros in Reddick’s name. Jack’s name is not in it. As Holder dies, he whispers to Reddick to use the money to pay Jack’s fee at the university. Of course Reddick has a greater claim of the money as per the will. Jack thus has to find out whether they will that Holder wrote was valid or invalid (Finch, 2013), (Emanuel, 2013) and (Finch, & Mason, 2013). A valid will is handwritten or typed, signed by the person who makes the will or another person as directed by will maker, acknowledged by two witnesses who have to sign and has the signature of the will maker or the person directed by the will maker. Of all this requirements, Holder’s will was signed in front of a solicitor and not solicitors hence had one witness. This makes it invalid (Finch, 2013), (Emanuel, 2013) and (Finch, & Mason, 2013). It cannot be used against him and hence can cling on the last wish of the dying Holder, that the money to be used for his university fee. The will of the dead has to be respected. My Advice to Reddick Reddick is a policeman. His name was written on the will as the beneficiary of the thirty thousand Euros left by Holder. This gives him an advantage. However, the last wish of the dying Holder, “The money I’ve left you in my will, it’s to pay Jack’s university fees,” complicates the issue for him. The directions of the initial will authorized by Holder do not tell how he should spend the money (Finch, 2013). He could thus use the money any how since it is not indicated that he should use it for payment of Jack’s fee. The direction issued by Holder at his dying moment is a will. However it is an invalid will that cannot operate. Let as look at the following facts; Holder as the will maker did not sign to the fact that the money would be used to pay Jack’s university fee. Neither did he have a representative to do so. There were also no witnesses to assert his decision by signatures (Knight, 2011), (Hirsch, 2014) and (Finch, (2013). Since it was made in the form of a whisper by an agonizing and dying man, it is possible that it is only Reddick who heard the wish or will. Holder’s will was neither written by hand nor typed. This discredits the will of Holder to a mere wish. Reddick is thus entitled to use the thirty thousand Euros the way he likes since no rule guides him on how to use it. The question of whether to use it to pay Jack’s fee is completely out placed. The money is legally Redddick’s. It is up to him, his conscience and moral upbringing to decide whether to pay Jack’s university fee or not (Knight, 2011), (Hirsch, 2014) and (Finch, (2013). My Advice to Caroline According to the fact presented, Caroline was Holder’s girlfriend living with Holder at the time of his death. They had lived for the last four years. The question is now whether she is entitled to the property of the deceased. This would be possible only if she was legally married to Holder. However, the facts about her union with Holder favor her. According to the Common Law Marriage, she is Holder’s wife. When two people of the opposite sex live together for an extended time period, they become husband and wife (Finch, 2013). The two had lived for four years. When the two, in public, hold themselves like a couple during this time, they are regarded as husband and wife. The two were boyfriend and a girlfriend and such antic is inevitable. These two facts qualify Caroline to be a spouse to Holder. It is obvious Holder’s will was invalid. Caroline, as his spouse or civil patter is thus entitled all of Holder’s property if there are no children. Should there be children, she gets two thirds of his property. In case Holder had made his will valid, Caroline as the civil partner or spouse would still be entitled to half of Holder’s estate when there are no children or a third of his property if children exist (Finch, 2013), (Emanuel, 2013) and (Finch, & Mason, 2013). If Caroline decides to take the legal right or give out the given will, then Caroline’s personal representative must let her know about her rights to the ownership of part of the property of the deceased. This information must be passed to Caroline within the first six month after the death of the spouse so that she is well conversant with this legal rights bestowed to her. This must also take place in a span of one year of granting the probate (Finch, 2013), (Emanuel, 2013) and (Finch, & Mason, 2013). I believe that if the three clients; Jack, Reddick and Caroline heed to the pieces of legal advice that I have given to them above, all of them are definitely going to walk out of the court room happy, having gained or inherited property from the deceased. This is not by any mischief but by legally following the framework of their cases to give them what is legally theirs (Knight, 2011), (Hirsch, 2014) and (Finch, (2013). Part B Before embarking on analyzing the case to establish entitlements, rights and responsibilities of Andreas and Brigitte, let as look at the following facts. The two, Andreas and were unmarried. They bought the property, 13 Acacia Avenue in 2002. The property was worth two hundred thousand Euros. Of the two hundred thousand Euros, Andreas contributed fifty thousand Euros as Brigitte contributed one hundred and fifty thousand Euros. In 2009, Brigitte met Carlos and they began an affair. Carlos suggested that HE buy a house for THEM to live in and she agreed. In 2010, the house, 23 Broom Road was bought at two hundred thousand Euros. Of that he paid one hundred thousand Euros and borrowed the rest from Jaywick Building Society. It is in 2010 that Brigitte left Andreas and moved in with Carlos. Andreas served Brigitte with a notice under 36(2) of the Law of Property Act 1925. Meanwhile Carlos paid the mortgage. Brigitte used the allowances she got from Carlos for housekeeping. She painted the house and decorated it (Ayotte, & Smith, 2011), (Basch, 1982) and (Bradbrook et al 2011). She also re-landscaped the large back garden. After their separation, Broom Road is worth three hundred thousand Euros as Acacia Avenue is worth three hundred and sixty thousand Euros. Andreas and Brigitte’s Entitlement, Rights and Responsibilities It is important to note that Andreas and Brigitte both went in concurrence with the Common Marriage Law by buying a property together which they lived in. This would automatically make them a couple. When Andreas served Brigitte with the 36(2) of the Law of Property Act 1925, it meant that they would co-own the property, Acacia Avenue. Also in the land registry, the cross in the box meant they would co-own the property (Chang & Smith, 2012) and (Emanuel, 2013). As they separated they continued to own the property together as ‘tenants in common’ as in Davis v Smith (2011) EWCA Civ 1603 where a separation was on ogoing and if a joint tenancy was served. When the two separated, the Acacia Avenue was worth two hundred thousand Euros. It has since then rose to 360 000. If Andreas agrees that they sell the property as Brigitte proposes then it will be as follows. The original net value of the house will be calculated. They will then share the original value on the basis of their ratio of contribution. Andreas will then be entitled to a quarter of the original value. Brigitte is entitled to three quarters of the original value (Muhammad, 2011). However, the house value rose to with 160 000 Euros after Brigitte moved out. It is obvious that Andreas maintained the Acacia Avenue and that is why its value appreciated that much. Since the two were not a couple but owned the property together, 36(2) of the Law of Property Act 1925 entitle only their share in the original value of the property and not the net profit (Chang & Smith, 2012) and (Emanuel, 2013). The profit was earned by the effort s of Andreas after Brigitte expressed dissatisfaction and left to live with Carlos. Andreas is thus entitled to the ownership of the 160 000 Euros. Both of them are entitled to making decisions with regards to the property. This means that their decisions must be heard. The decisions must be mutual and agreed upon by both parties since they are both entitled to the property. Brigitte cannot solely decide to sell the property without the approval of Andreas. The power of approval and consent thus lie on both of them (Chang & Smith, 2012) and (Emanuel, 2013). In the case of Brigitte v Carlos these are the following facts. The property, Broom Road was bought by Carlos money. Part of it (100 000 Euros) he paid by cash and the remnant by installments through mortgage. At this time, they were both civil partners. He looked for the consent of Brigitte. They therefore co-owned the property. Under the Common Marriage Law, Brigitte has a share in the property (Muhammad, 2011). They lived like husband and wife in the property. Besides, she was consulted before the property was bought and she took care of the property. This therefore means that she is entitled to the co-ownership of the property. Brigitte owns the extra one hundred thousand Euros that the house appreciated by right. The initial value of the property was 200 000 Euros. Brigitte ensured that the money she got she used for housekeeping. She also decorated the house and painted it. Since she was a meticulous gardener, she re-landscaped the property (Muhammad, 2011). All these activities that she carried out increased the aesthetic nature of the property, thus increased its value. It is important to know that Carlos did not take part in maintaining the look of the property. The only thing he did was to buy the house. So if the house’ value increased, it was due to Brigitte’s effort. Therefore, Brigitte is entitled to the ownership by right of the additional 0ne hundred thousand Euros of the property even before claiming half of the original value of the property (Sprankling, 2012). The Broom Road was half bought using the mortgages. These mortgages were paid by Carlos. If Brigitte is to claim half the share of the property, then she must also assume the ownership of the mortgages. The law states that whether unmarried or married, you are responsible for the debts in your name or those that are jointly accumulated with someone in a property having your name. Brigitte thus has a debt to pay in the Broom Road property (Fisher, 2012). Since they are no longer living together, the amount she owes will be subtracted from her share before the value of the property is divided equally. Brigitte has the right to consent over the property she owns with Carlos. Before its purchase, she was consulted and only agreed that is when Carlos bought the property. It is obvious that the property was also bought in both of their names (Barlow, 2008). This makes her a co-owner of the property. Since their union also adhered to the Common Marriage law; they lived together for quite some time and they bought a property together, they automatically become civil partners or spouses. This guarantees Brigitte a loud voice over the property and thus the property cannot be sold, auctioned or tampered with without her approval as she is a co-owner of the property (Chang & Smith, 2012). Ontario’s Law Act stipulates a mean of dividing value property that was acquired in a union. It is referred to as Equalization of gross net family properties. Each spouse is supposed to fill and swear out his or her financial statement. The financial statement is expected to list all the assets that each partner owned and the date when they actually separated (Chang & Smith, 2012). The list also includes and the debts that each partner owned and the date of their separation too. Gifts and any inheritance that each inheritance had or got during the union are also included in the financial statement. The financial statement is used to calculate the net value of the property of couple. Thereafter, the net value is equalized or dived by two. This law act can be used to solve the case of Brigitte and Carlos. Their net property will be calculated through a financial statement and the worth is equalized if Brigitte demands half the share of the property. In the milestone ruling of Nova Scotia (Attorney General) v. Walsh 2002 S.C.R. 83, the Supreme Court in Canada has passed a verdict that excluding unmarried partner from provincial matrimonial property rule or laws is not discriminatory1. Susan Walsh and Wayne Bona had cohabited for 10 years until 1995 (Emanuel, (2013). They bore two out of this relationship. Ms. Walsh demanded and applied for the constitutional spousal support and her children support. She also sought for a declaration that the stipulated definition of the word ”spouse” in Nova Scotia’s( her partner) Matrimonial Property Act was not constitutional because it could not provide her with the right to an equivalent division of the matrimonial property—a right that is always available only to married spouses (Emanuel, 2013). The 8-1 decision, the Canadian Supreme Court ruled out that excluding unmarried spouses away from matrimonial property laws is regarded not discriminatory since the distinction reflects the variations between married and unmarried unions and respects the basic personal autonomy and self-respect of the individual. The highest court affirmed that the decision to get married, or not to get married, is private and that many widespread law couples have preferred to avoid marriage and its lawful consequences2. They are free to get married or take other steps in condition that they want to benefit from the benefits accessible to married couples. I have a conviction that the claimant team failed to address the Common Marriage Law to help Ms Suzan Walsh win the claim. From her relationship with Wayne Bona, it lasted ten years with two children. This automatically qualified them as a married couple according to our laws. While at this, Ms Walsh is entitled to the privileges that she requested for; the spousal support and the child support. Unfortunately, Common Marriage Laws vary (Emanuel, 2013). Reference Ayotte, K., & Smith, H. E. (Eds.). (2011). Research Handbook on the Economics of Property Law. Edward Elgar Publishing. Barlow, A. (2008). Cohabiting relationships, money and property: The legal backdrop. The journal of socio-economics, 37(2), 502-518. Basch, N. (1982). In the eyes of the law: Women, marriage, and property in nineteenth-century New York (p. 71). Ithaca, NY: Cornell University Press. Bradbrook, A. J., MacCallum, S. V., Moore, A. P., & Grattan, S. (2011). Australian Real Property Law. Lawbook.. Chang, Y. C., & Smith, H. (2012). An economic analysis of civil versus common law property. Notre Dame Law Review, Forthcoming. Emanuel, A. G. (2013). To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination. Finch, J. (2013). Inheritance and Financial Transfer in families. The New Generational Contract: Intergenerational Relations And The Welfare State, 120. Finch, J., & Mason, J. (2013). Passing on: Kinship and inheritance in England. Routledge. Fisher, H. (2012). Divorce property division laws and the decision to marry or cohabit. Journal of Law, Economics, and Organization, 28(4), 734-753. Hirsch, A. J. (2014). Teaching Wills and Trusts: The Jurisdictional Problem. St. Louis University Law Journal, 58(3). Knight, J. (2011). Wills, Probate, & Inheritance Tax For Dummies. John Wiley & Sons. MacNamara, J. E. (2013). Inheritance in Ontario: Wills and Other Records for Family Historians (Vol. 8). Dundurn. Muhammad, N. (2011). Inheritance in property: A gender based discriminatory practice in Rural Areas of Tangi, district Charsadda. Sarhad J. Agric, 27(1), 143-146. Pawlowski, M., & Brown, J. (2013). Co-ownership and severance after Stack. Trust Law International, 27(2), 59-67. Pestieau, P. (2011). 6 Gifts, wills and inheritance law. Contract Law and Economics, 6, 96. Roy, S. (2013). Empowering Women: Inheritance Rights, Female Education and Dowry Payments in India. Sprankling, J. G. (2012). Understanding property law. LexisNexis.. Vranken, L., Macours, K., Noev, N., & Swinnen, J. (2011). Property rights imperfections and asset allocation: Co-ownership in Bulgaria. Journal of Comparative Economics, 39(2), 159-175. Wagner, W. G., & Wagner. (1994). Marriage, property, and law in late imperial Russia (p. 206). Oxford: Clarendon Press. Read More