Legal Requirements of a Will - Essay Example

Law of Will Legal Requirements of a Will: A will is a document which identifies the rights and liabilities of the parties to whom it is addressed.It is a ‘document in which a person specifies the method to be applied in the management and distribution of his estate after his death.’ It creates the rights to the people against the assets of the testator, also known as the person who is making the will, and also identifies liabilities to be paid off if any after the death of the testator.( Will Legal Definition of Will. Will Synonyms by the Free Online Law Dictionary." Legal Dictionary. Web. 07 Dec. 2011) Section 9 of the Will Act 1837: “Formal requirements of will No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.” Having understood the meaning of the will, the next step in the process of formation of the will is to understand the requirements of creating the will which has to be legally binding in the Court of law. Following are the conditions which have to be fulfilled in order to have a legally binding Will: 1. The Will made by the Testator must be the final version of his Will. There shall be no will made by him before he finally signs the Will, if in case there is a Will previous to the final Will then that Will shall be terminated and duly notified in the existence of the new and the final draft. 2. The Will shall be signed by the Testator 3. The Will shall have two witnesses at the least, and the witness’s shall have no inheritance of the assets in the structure of the Will, as they are supposed to be independent people who have no interest coming out from the creation of the Will. The Will should be signed by them. 4. The Testator has to be of sound mind and should be above 18 years of age. 5. The Testator should have an executer to execute the Will in the favour of the beneficiaries after his death, since the executer is the one who is responsible for the execution of the Will and making sure that the beneficiaries get their due share in accordance to the Will. 6. The Testator has to clearly identify the inheritors of his will and has to account for his property in full valuation. The condition in which Kevin signed the Will was incomplete as he had not appointed an Executor which is required for the enforcement of the Will once the testator is dead. Let us start to analyse the Will and seek changes if necessary according to the Will Act 1837 of England, which is the pioneer jurisdiction for the enforcement of Wills in common law countries. Potential Legal problems and their Solutions: Let us address each and every potential problem in the will and try to find the right solution for the same for the proper execution of the Will. Lack of Executor: The first and foremost issue with the current version of the Will is that it is lacking an Executor who shall be responsible for executing the Will before the Court of law after the death of the testator. One of the fundamental provisions for drawing up a will is to have an executor who shall dispose the will and its contentions in the favour of the interested parties as mentioned by the testator in the document. Executor is a “person who executes the contents of the Will after the demise of the testator is called the executor. The executor is the legal representative for all purposes of the deceased person.”( Business Rediff. 2009. Simple tips for making a will. [ONLINE] Available at: http://business.rediff.com/report/2009/aug/12/perfin-simple-tips-for-making-a-will.htm. [Accessed 07 December 11].) Without the involvement of an Executor it becomes legally complicated to execute and administer the Will after the death of the testator. “An executor is a person or company (such as a bank or firm of solicitors) named in a will to carry out or execute the wishes of the deceased and distribute the estate upon death. In England and Wales a person must be at least 18 to be an executor.” (Armchair Advice. 2011. Executing the Will. [ONLINE] Available at: "http://www.armchairadvice.co.uk/bereavement/legaladvice/executing.htm">http://www.armchairadvice.co.uk/bereavement/legaladvice/executing.htm [Accessed 07 December 11].) Kevin has to appoint an individual as an Executor of the will as without having an executor would make the task of distribution extremely cumbersome and complicated, and it also might bring in some conflicts between the beneficiaries as there could be instances where some parties might chose to stick together and argue for the reversal of the will or deny its legality unless there is an official Executor who has been placed in record to distribute the assets of the Will. An executor has a duty to take reasonable care in preserving the estate (Job v Job 1877). y. It was established in Re Takner (1942) that an executor could be personally liable for any costs incurred by the estate for failure to pay liabilities with a reasonable period of time. So as a general rule liabilities that attract interest should be paid first. The Trustee Act 2010 gives out the duties and responsibilities of the executor: To collect and safeguard the assets; To pay the debts of the deceased; and To distribute the estate to the beneficiaries correctly entitled (Mayne, Frances, 2006. Executors Duties. The Seminar 2006. Wilsons) So Kevin has to appoint an executor in order to have a legally binding will which shall have an effect on the parties interested to it. Let us have a look at the changes which had occurred at the time of the framing off the will. Kevin had taken the antique golf clubs to a local road show of the TV antique programme Flog It and discovered they were worth around £1500. He was persuaded to sell them in a televised auction and managed to raise £1800 for them. Kevin initially had made his friend Steve McDonald the heir to his golf clubs. He had mentioned in his earlier will his desire to give his best friend the set of golf clubs since he admired it a lot and therefore Kevin assumed that he was the best man to inherit the clubs and use them for his sporting activities. Section 33 of the Wills Act 1837 says the following: “Gifts to children or other issue who leave issue living at the testator’s death shall not lapse. Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will.” Doctrine of lapse does not apply to general charitable gifts. Kevin sold his gulf clubs to an auction and therefore he needs to revoke the part of the will where he donated the clubs. He cannot donate the money as doctrine of lapse does not apply, and therefore needs to do something else with the money. “Sean Tulley was sadly murdered two weeks ago.” Kevin had transacted 50 Pounds against her name so that she could have drink in his celebration after he died. Sadly, though, she died even before the death of Kevin and therefore that 50 Pounds is open for distribution for another friend of Kevin who may be given the money so that he can have a celebration of Kevin’s life after his death. According to the Wills Act of England, it is compulsory for the Testator to appoint some guardian or inheritor for the property, and that’s why Kevin would have to appoint someone else to take care of his 50 Dollars which would have otherwise gone to Sean Tulley. “Kevin has just paid for a holiday to celebrate his Wedding anniversary and the Building Society account to which he made reference in his will now only holds £1000.” Earlier when he drafted his Will Kevin held 500 Pounds and had created an account for his loved ones which was as follows: “The sum of £50.00 to each to my friends Dev Allahan, Kirk Sutherland and Sean Tully so they can have a drink on me when I’m dead; The sum of £500 each to my daughter Rosie, son Jack and my grand-son Jason and £1000 to Tyrone Dobbs. The sum of £2000 in memory of my dear friend Jack Duckworth to Coronation Town Pigeon Fanciers club” In total, he had declared cash worth 4500 Pounds to go to his friends and the rest of the 500 Pounds to go to his wife. Now the circumstances have changed and therefore it is pertinent to redefine the accounts in the Will to redistribute according to the latest financial position of Kevin. In order to redefine the Will, it is required that 1000 Pounds goes his Son and Daughter since they are the closest he has in the family line of inheritance and they would be the deserving heirs of the money. Therefore, the final 1000 pounds is redistributed to his daughter Rosie and son Jack equally in the share of 500 Pounds each. “He was also concerned that his desire to be buried may not be complied with as Sally has said she’d prefer him to be cremated, it being the cheaper funeral option.” Since it is the desire of Kevin to be buried and not cremated even if it’s the more expensive option, it is the duty of his wife to make his final and last wish come true. It would be the better option to do if he were to be buried and not cremated, and therefore in the final will there should be a clause be put that he shall be buried according to the final rituals and not cremated. “During some general chatting in your office, he informs you that he was really pleased to be asked to the wedding reception of his friend Steve McDonald and Tracey Barlow the day before” Tracey Barlow married Steve Mcdonald, who was a friend of Kevin and had been given a share by him in his property. Section 10 of the Wills Act says the following: “Gifts to an attesting witness, or his or her wife, husband, civil union partner, or de facto partner, to be void” If any person shall attest the execution of any will to whom or to whose wife, husband, civil union partner, or de facto partner any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife, husband, civil union partner, or de facto partner of such person, or any person claiming under such person or wife, husband, civil union partner, or de facto partner, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will.” The Act clearly mentions that the persons who attests and signs the will is not eligible to be included as a person who can inherit any part of the property distributed within the Will. The section applies to married people as well. “Restriction of operation of Wills Act 1837, s. 15. (1)For the purposes of section 15 of the M1Wills Act 1837 (avoidance of gifts to attesting witnesses and their spouses) the attestation of a will by a person to whom or to whose spouse there is given or made any such disposition as is described in that section shall be disregarded if the will is duly executed without his attestation and without that of any other such person. (2)This section applies to the will of any person dying after the passing of this Act, whether executed before or after the passing of this Act.” Therefore, inferring from the Section and applying the same formula in the facts and circumstances of the case, we can arrive at the conclusion that since Tracey is marrying Steve who has a share in the Will of Kevin, she is therefore not anymore eligible to sign the document of the Will. In the case of Re Young 1951 it was held that witnesses spouse cannot get any gift, and therefore we come to this conclusion. He has decided not to give any share to his granddaughter which is fine by the Law of the Wills, and deciding not to give any share to his daughter is also acknowledge by the laws of the land. Therefore, the final will of Kevin shall be now drafted stating the changes made to the earlier will. With regards to the whiskey bottles being supplied to his friend, Re Barlows WT 1979 had the judgment where it was mentioned that goods which are uncertain in nature shall not be given as a gift in the Will for the Testator. Whiskey bottles are not certain goods but uncertain goods which are prone to getting bad, and therefore Kevin should not include this in his will. Bibliography Cases: 1. Job v Job 1877). 2. Re Young 1951 3. Re Barlows WY 1979 Links http://business.rediff.com/report/2009/aug/12/perfin-simple-tips-for-making-a-will.htm. Statutes The Wills Act 1837 Section 15 Section 33 Section 9 Read More