Relevant Law On Succession, Forfeiture And The Steps A Personal Representative Can Take In Respect - Essay Example

Relevant Law on Succession, Forfeiture and the Steps A Personal Representative Can Take In Respect of Missing Beneficiaries By; Insert your name Course/ Semester Professor’s name Institution Date due Q. 1 As evidenced by Alice’s case, various factors make the executioner’s work of distributing the deceased estate challenging. Some of those factors like in this case include the absence of a will, missing beneficiaries, and uncooperative beneficiaries. However, in this particular case, two latter factors are of importance. Though there is a will, its presence, unfortunately, does not make matters simpler for Wanda as all of the three closest intended beneficiaries (Alice’s husband, Barry, and Ian) are deceased or Missing. It is of critical importance that none of the beneficiaries is left out as doing so might make Wanda liable to payout by using her funds. The first step to making sure that she knows all entitled parties and protect herself against future claims would be to make appropriate inquiries of the deceased relatives to try and locate them. Such inquiries may include advertisements in the local dailies closest to their residences or last known residences. She might also seek the services of private investigators or genealogist if need be. If these measures do not yield any fruits in locating the missing beneficiaries, in this case, Ian, Wanda has some options as the personal representative and Executioner of Alice’s last will and testament. The first option is to distribute the proceeds of the estate to the remaining known beneficiaries. In this case, these beneficiaries are Barry’s children Simon and Tammy. However, another factor comes into play. According to the Forfeiture Rule and Law of Succession Act 2011, a person may not inherit from a person he or she has unlawfully killed either under their will or intestacy. Additionally, this law when applied in conjunction with interstate succession laws disinherits even the descendants of the killer. Consequently, under this law, Simon and his three children Hanna, Gary, and Ivan are all not eligible to inherit from Alice’s deceased brother Barry. Therefore, Wanda only has to pay out the estate to Tammy, who is the only eligible beneficiary apart from Alice’s missing brother Ian. However, Wanda still has to get an indemnity from Tammy so that she (Tammy) can reimburse her(Wanda) as the personal representative of Alice’s estate in case the missing beneficiary(Ian) eventually came forward. The other option would be to pay out the proceeds of the estate to the known eligible beneficiary, Tammy, and keep a reserve fund so that Ian can be paid his share in the case that he ever surfaces to claim his share. This option is the most practical and convenient solution to all parties involved as payment to Tammy is not held up, Ian’s share is not squandered, and it absolves Wanda of any liability in the future. The fund by law is kept for 12 years after which if it is still unclaimed, will be paid out to Tammy in case she is alive and to the courts if she is deceased by then (Roseman, 2012).. The third option would be for Wanda to distribute the estate to the known beneficiaries and take out an insurance policy that covers the payout of the missing beneficiary in case he is ever traced. The premium is deducted from the policy as administration expenses. The one-off premium will allow Wanda to continue with the distribution of the estate while absolving her of liability in case missing beneficiaries surfaced for their share. Although these three options highlighted are the most suitable ones owing to the relatively moderate value of the estate, there is a fourth option that Wanda can explore. Wanda can apply for an order pursuant to CPR r.64.2 from the courts (Roseman, 2012). The order commonly referred to as a “Benjamin Order” enables the personal representative to distribute the estate according to the stipulated terms of the order. In drafting the order, the court assumes that the missing eligible beneficiary (Ian) is deceased. In so doing Wanda will be shielded from personal liability should it come to light that Ian is in fact still alive and is trying to get his share in the future. The order additionally grants Ian or his personal representative the power to pursue the other beneficiaries should need arise where he needs his portion of the estate. However, these option is both time consuming and costly since there are forms to fill, receipts to fill, and long waiting periods before the court can grant such orders. It is therefore only pursued in the case where there are not other options, or the estate is large enough to justify the costs and time expenses. Another scenario hat Wanda ought to consider is the cooperativeness of both beneficiaries (Ian and Tammy). In the case whereby both parties, citing their own reasons, refuse to accept their portions of the estate or become uncooperative, Wanda has two options she can pursue. The first option would be for Wanda to apply under CPR Part 64 for court directions. Unlike an order under CPR r.64.2, the courts do not assume the beneficiaries are deceased but rather takes into consideration the reasons brought forward by the executioner of the estate and the said beneficiaries (Roseman, 2012).. Upon consideration of views from both parties, the court then drafts the orders and obligates the executioner to implement the orders. However, if one of the beneficiaries is not partisan to this option, he or she might have a legitimate grievance citing unreasonableness on the part of the executioner in incurring unnecessary extra costs by applying for the court directions. Therefore, before proceeding with this option, she must inform all liable beneficiaries, cooperative or otherwise, on the intended course of action. The other option would be to pay out the value of the estate to the courts incase all liable beneficiaries are uncooperative or refuse to accept their inheritance. The payout is equivalent to obtaining a legal receipt from the beneficiary. However, if Wanda pursues this option, there is always a risk of incurring personal liability should the uncooperative parties have a change of heart and decide to seek for reimbursements citing unreasonableness on her part as executioner. “Unreasonableness” is relative to each particular case and circumstance and, therefore, does not shield the personal representative. Therefore, before pursuing this option, she should evaluate the circumstances of the case and try to weigh the pros and cons of all viable options. However, the fact that one of the beneficiaries, Ian, has been out of touch for so long gives her a reasonable cause to doubt whether he is entitled to any share of the estate and hence her decision to pursue the payment into court option (Roseman, 2012). Finally, Alice’s case is made intricate by the fact that all directly eligible beneficiaries (Her husband, Barry, and Barry’s wife) are deceased. Additionally, the fact that Barry’s Son Simon is convicted of his father’s manslaughter not only disinherits him but also disinherits his children. Her other brother Ian has been out of the picture for quite some time. Taking all these factors into consideration, Wanda in her role as the executioner is left with two eligible beneficiaries, Tammy and Ian with Ian being considered a missing beneficiary. The question therefore for Wanda is to choose the best option to pursue in the case where the beneficiaries may be cooperative or uncooperative. In case they are cooperative, she still has to consider the different avenues for handling the missing heirs’ portion of the estate to avoid personal liability and avoid inconveniencing the other party. Despite her opinions about the relationship between Alice and Simon, she is bound by the law as the personal representative of Alice to follow due process in distributing the estate and desist from making personal judgments and emotional attachments. Q.2 The forfeiture rule aims to deprive criminals of the benefit of gaining some form of value, monetary or otherwise, for their actions. This applies to instances whereby individuals commit murder in order to gain from the deceased death often through insurance claims or inheritance of property and money. However, the forfeiture rule is somewhat blurry when it comes to manslaughter, as is the case of Simon. The law stipulates that the forfeiture rule holds for manslaughter charges unless, when all the circumstance surrounding the case are looked at, it would not be just to deprive the perpetrator of the benefits they stand to receive. Fortunately, there are some avenues that Simon can explore to claim his share of the estate. Although the case against him is quite straightforward. Simon did indeed kill his father and stood to benefit by inheriting his father’s share as an indirect beneficiary. However, it is the circumstances surrounding the death of his father that must be reviewed. Simon can launch an appeal not against his manslaughter conviction but the application of the forfeiture rule to his case. Under such an appeal, section 2 of the Forfeiture Act 1982 grants the court power to modify the forfeiture rule. However, the modification can only be done if the courts take into account the conduct of both the offender and the deceased, circumstances, and other relevant material and finds that the case requires modification of the rule. In Simon’s case, the circumstances are by themselves enough basis to modify the rule. His father was a well-known alcoholic who had a history of being hot tempered. On the night he died, he was in an altercation with his wife when Simon intervened and stabbed him in a moment of passion. There was no intention to kill his father rather his actions were fueled by his protective instinct of his mother. All Simon has to do is find enough evidence as to the history of alcoholism and abusive nature of his father. Additionally, he has to prove that the circumstances were as described in the excerpt. The court can, therefore, review these submissions as to the circumstances surrounding the case and rule whether they are ground enough to term the application of the Forfeiture rule as unfair to Simon Another avenue in contesting the forfeiture rule would be to prove that at the point when he stabbed his father, he had no knowledge of any existing benefits he stood to gain. In the case of Henderson v Wilcox [2015] EWHC 3469(Ch), the court allowed the offender to enjoy the trust benefits of the deceased. In the ruling, the court argued that Ian, the offender, had no knowledge of the trust benefits he stood to gain as a result of the death of his mother and, therefore, the gains were not a motivating factor in his actions to kill his mother. Additionally, since the trust would not mature for another few years, the court found that it would be unfair to deprive Ian of the benefits particularly his mother’s death had no impact on the trust as even if she were alive, the money in the trust would still have been awarded to Ian. In Simon’s case, just like Ian’s, he did not have any knowledge of the inheritance. Additionally, he killed his father months before his aunt Alice died. Therefore, his actions were in no way motivated by an incentive to benefit from his father’s death. His actions, therefore, at that time, did not entitle him to benefit from anything, and it is only his Aunts death, months later that changed that. Also, even after killing his father, her aunt might have changed her will or explicitly disinherited him which she did not indicate that she would have wanted Simon given a share (Sutcliffe, 2016). Citing these factors, Simon can contest for the overturning of the forfeiture rule in his case. Upon overturning the application of the rule to his case, Simon ought to contact Wanda. Depending on the avenue she sought to distribute the estate, he can proceed to file formal claim for his portion of the inheritance. Q.3 As far as the law is concerned, Ian is still an eligible beneficiary to Alice’s estate. Therefore, Wanda must take appropriate measure to locate him as leaving out beneficiaries during the distribution of an estate leaves the executioner liable to malpractice lawsuits and incurring payouts from their personal finances. The first step would be to contact Alice’s friends and relatives and inquire if they might have any knowledge as to his whereabouts. In case this does not bear any fruits, she should locate his last known residence and inquire from current tenants and neighbors if they have been in contact. If she is still not able to locate him, the next step would be to use mass media such as the local daily circulating in his last known residence by placing advertisements. She may also choose a newspaper that has the widest circulation for this purpose. If her efforts are still futile, she may employ the use of private investigators that often have the resources and capability to locate people even in other countries. However, if all efforts to locate and contact him are still futile, she needs to have contingency measures in place in case he ever resurfaces in the future. The most practical measure would be to set up a reserve fund from the estate. The fund will be paid out to other beneficiaries if it is unclaimed for 12 years. The other option would be to seek out an insurance cover for his unclaimed share of the inheritance. The cover would be paid out to Ian in the event he resurfaced to claim his share after the estate had already been distributed. The final option for Wand would be to seek a court order under CPR r.64.2. The law commonly referred to a Benjamin Order would enable Wanda to distribute the estate without the risk of future liability if Ian came for his share (Roseman, 2012). Bibliography Roseman, G. (2012). Missing or Uncooperative Beneficiaries: What are the Options for Personal Representatives?. [online] Lawskills. Available at: http://www.lawskills.co.uk/articles/2012/03/missing-or-uncooperative-beneficiaries-what-are-the-options-for-personal-representatives/ [Accessed 28 Mar. 2016]. Sutcliffe, A. (2016). Forfeiting Inheritance by Criminal Conduct | Wright Hassall. [online] Wrighthassall.co.uk. Available at: https://www.wrighthassall.co.uk/knowledge/legal-articles/2016/02/15/forfeiting-inheritance-criminal-conduct/ [Accessed 28 Mar. 2016]. Read More