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PROBLEM-SOLVING:BAR PRACTICE (law) - Coursework Example

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(Title) (Name) (Subject) (Nature of Work) SUMMARY OF ADVICE In brief, Mrs. Carol Nash may contest the will of her father, John Pendleton, dated 2010 and stand to collect, along with her sibling, Louise Pendleton and their children, the estate of their father…
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REPORT The Client' Objectives It is the objectives of Carol Nash and Louise Pendleton in the process, to contest the alleged 2010 last will and testament supposedly executed by their father, John Pendleton in favor of Charlotte and Trevor Michaels and have it declared invalid. Likewise, it is their aim to reinstate the validity of the initial will dated 1992 where they stand to inherit their father's Residuary Estate. Failure to do the latter would not bring harm to their foremost objectives since the intestacy law would still render them recipients of their father's estate should both wills be revoked. A. Claims Against Charlotte and Trevor Michaels There are several areas of the law that can be applied to this probate case. They need to contest the will based on several items, namely, fraud and undue influence, capacity to make a will, animus testandi and failure to carry out necessary and lawful formalities in the execution of the contract. 1. Fraud and Undue Influence In the case Partiff v Lawless, it is determined that there will be no presumption of undue influence from evidence suggesting a close relationship between the party suspected to have used influence and the testator, unlike inter vivos transactions. Moreover, to be able to establish that there was undue influence, it would be necessary to present evidence showing that the testator was forced against his will. This point was highlighted in Hall v Hall,1 wherein it was stated that while the testator can be led, he may not be driven and that the will should be made from his own volition and not somebody else's. Coercion can be applied in a multitude of ways, but the test being applied always asks if the testator’s volition was overborne. This test is prejudiced, so the result relies on the effect of pressure or threats on the specific testator.2 Therefore, if the testator is weaker, both physically and mentally, it would be easier to reveal undue influence and vice versa. The person claiming undue influence carries the burden of proof. Very strong evidence is needed to back up such serious allegation. If an individual declares such accusation without supporting evidence, the court has the right to penalize them in form of costs.3 Fraud is deliberately misinforming the testator, influencing the making of the will and the provisions within. Just like that of undue influence, accusations of fraud is serious, so it must be made with sufficient proof. 2. Capacity to Make a Will To be legally capable of making a will, the testator should be 18 or above.4 Furthermore, he or she should be mentally competent to be eligible to make a will, one requirement that raises numerous concerns. The test of mental competence is clearly manifested in Banks v Goodfellow. Under this case, the real test of mental competence is if the testator made the will with a mind and memory that is both sound and disposing. This necessitated the testator to possess a complete understanding of the kind of business in which he is involved in, a memory of the property he is to give away, of the people who he intends to give the property to and the way it is to be distributed among them. It should be noted that the testator only needs a general recollection of his possessions but he should, at the ... Read More
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