Analysis of Law of Succession Cases - Coursework Example

? Law of Succession QUESTION Issues, which arise in this case Preparing a will is a significant way to distribute properties and funds according to one’s wish. According to De Waal (2003, p5), a will is a legal document that designates the transfer of assets and properties after one die, and can only be documented by a person over the age of 18. In New York, for one to make a valid will, he or she should be of sound memory and mind, and there must be two adult witnesses who have understood the will. In this case, it makes sense for Elisa to instruct Mary, a local solicitor and a family friend, to prepare a will on her behalf so that she would not make mistakes or unintentionally fail to accomplish what she intended. However, there are issues that arise in this case, which this paper seeks to discuss. First, Elisa failed to document basic information on the will, but only went to an extent of instructing Mary that she wished her properties to be in equal shares to her children; Damon, Nigel, and Bella. In this case, it would be paramount if the will had basic information that entails name, marital status, children, and address. It is smart to provide basic information before drawing up the will, which act as a clear guide of how the will relates to the testator and his beneficiaries. In this case; it would be essential to outline the intended beneficiaries, their relationship to her, where they lived, and their age, which lack of it would lead to protracted legal claims and redundant confrontations between the deceased later. Following this, Elisa could have carefully considered the emotional and practical impact of the will when it lacks some basic information. As discussed, Elisa’s will lack basic information on the children’s age, Elisa marital status, and her address all, which are indispensable in transfer of the will. Despite having a strong desire to equalize her shares to her three children, there are issues which arise on the will lacking some basic information. In this case, it would be paramount for Elisa to state the age of her children in the will so that in the future, it would eradicate problems attributed by lack of this information. Still, it would be paramount to indicate address and marital status to avoid misconceptions that Elisa was once married hence, the partner demands the inheritance (Francis 2003, p80). Secondly, the case lack an executor who would oversee the distribution of properties as stipulated in the will. Choosing an executor is the most important decision in that he tends to carry out the final wishes. In most cases, most people prefer to pick an adult child or a spouse to neutral third party. However, it makes sense choosing a neutral third party to carry out the wishes of the will because he would carry out his procedures without favoritism. As indicated in the case, when Elisa died, crisis existed since according to will, the residuary estate should be equalized among her three children, but conflicts emerged of the will having people such as Dante who Elisa had never known. Such crisis would not occur if, there was an Executor who would carry out the wishes of the will. It is indispensable to bear in mind; Mary’s responsibility was to draft Elisa’s will professionally. Nevertheless, making a valid will requires testator to have an executor who would ensure that everyone respects the will. It is crucial to note that, children under the age of 18 years should not inherit parents’ estate. This is the most important reason why it makes sense, having an executor in the will to carry out the final wishes stated (Lifford 2003, p50). Thirdly, an issue arises on, lacking to list all assets, their cost, their worth, and their location. Still, the will fails to indicate where Elisa’s children live and their respective age. It is true that a will is a chance to list the basic information of the assets, the intended beneficiaries, and their age. This would prove that the beneficiaries are of the sound mind and memory. Typically, since Elisa wished to leave donations to charity, he failed to give adequate information about the registered charity called Canine Crisis. The information includes the exact names and addresses so that in the future, it would be easier to locate the charity. Fourthly, the case raises a significant concern of the will information changing from what Elisa wanted to what would have happened six months later. As the case reveals, following a bitter dispute with her niece Claudia, Elisa removed her will from her bedside drawer and covered up Claudia’s name with white sticky tape. This created controversy in that Elisa’s will obligated the residuary estate to be equalized between Nigel, Bella, and Dante. Astonishingly, Elisa had never known a person known as Dante thus, three weeks before Elisa’s death, canine crisis ceased to exit. As per law experts, one should have at least two adult witnesses who are not beneficiaries and understand it is a will (South African Law Commission 1983, p40). However, in Elisa’s case, Claudia being on Elisa’s beneficiary signed the will, which thereafter created controversy. Conclusively; having realized her mistake, Elisa covered up Claudia’s name with white sticky tape since this would create crisis. Now, this creates a paramount concern of the bleaching of the law demands that one should never change any details presented in the will. Having done this, Elisa violated the law by illegally changing the will to protect legal claims without considering the repercussion that would emerge. In reality, it is easier to address absolute changes with a codicil, but bigger changes such as witnesses require one to prepare and change the new will. Witnesses are very influential in preparing a will, and as Ventura (2002, p10) states, one should not make changes in this area. Therefore, this case raises a concern of the need to document another will that would not create disagreement particularly, on the witnesses signing the will. Indeed, the above issues would create division of the will not meeting its standards. Therefore, it should be beneficial to everyone reading the above case to put these issues into consideration to prevent crisis existing in future. QUESTION 2 Who will be responsible for administering Alfred’s estate? Alfred’s case raises various concerns on who will be responsible for administering his estate. As argued in case; it stands out that, the will is unclear since Alfred statements do not align with the information discovered after his death. As stated, Alfred appointed his wife, Phoebe, and his brother, Thomas to be his executors prior to his death. However, after his death, Thomas did not want to act as Alfred’s executor, and has had no contact with Alfred for over ten years. Still, Alfred and Phoebe divorced in March 2009 thus, creating contentious issue being one of the executors. Typically, the will is so unclear that, some of the assets distributed in the will do not either exists or are loaned. For instance, in 2008, Alfred sold his much-cherished MG BGT sports car and bought a Nissan Micra with proceeds from the sale. Still, Alfred never owned shares in British Gas, and in March 2009, a national museum had loaned his collection of ancient clocks. Still, in 2001, Alfred had an affair with his housekeeper, Michelle who became pregnant after two years. Although the affair did not continue after Portia’s birth, regularly, Alfred sent money to Michelle for maintenance and for expenses of raising Portia. Now, the case study continues to state that, Portia has severe learning difficulties, which as a result, hinders Michelle from getting regular employment. Following this, Michelle is currently claiming state benefits despite not appearing in the will. Now, the main question is who will be responsible for administering Alfred’s estate? To Jones (1993, p100); if there is lack of clarity in the will, a civil action to interpret the will may be documented in the probate court, and thereafter, the hearing should be held to decide the objective of the testator. Most individuals make filings before the court represented by the attorney to prevent law complication in the future. It is worth to note that, when one dies, it is necessary to pursue formal procedures while settling the estate through a process called estate administration. According to Law Reform Commission of Papua New Guinea (1978, p39), the word estate describes the property and obligations of an individual who has died while administration includes requirements and procedures relating to assets collection, gratifying obligations such as expenses, taxes, and debts. Mellows (1977, p10) affirms that, when a person dies having a real estate or personal property, it is important to administer a personal representative who works with Attorney to comply with the legal requirements. If an individual executed a will during her or his lifetime, the will should indicate the personal representative referred as an Executor. The will and the law established individuals entitled to administer an estate. The duties and responsibilities of the personal representative include protecting and locating estate assets, paying the debts, taxes, and expenses of the assets, complying with requirements of federal and state law, and finding the will and making it probated, which is the legal procedure that establishes the legality of the will. In this case, the person who should administer Alfred’s estate is the executor presented in the legal document. According to Smith, Grossman and Hollinger (2001, p87); the executor is a person named in the will to carry out wishes of the individual making the will. As indicated in the will, Alfred appointed his wife, Phoebe and his brother, Thomas as his executors. Despite discovering that Alfred and Phoebe divorced in March 2009, it is wise to consider decease wish for his wife and his brother to be his executors. However, there is a need of inviting a lawyer and an attorney because the will seems invalid. Much of what exit in the will does not align with present information. Still, the will fails to meet law requirements of having witnesses and the testator signatures. This creates an urge to invite a lawyer to support in administering estate, and this would eradicate problems that would emerge in the future. Practically, it is difficult for Thomas to act as an executor in that, he does not want to act as one, and for ten years, he had no contact with Alfred. Still, to some extent it is difficult for Phoebe to be an executor having in mind they divorced with Alfred in March 2009. Following this, it will be difficult for both parties to follow the required procedures while administering an estate with the support of an attorney. While administering, the executors should gather all assets and real estates. All beneficiaries have the right to acquire an inheritance of the deceased. It is obligated that, when the will is unclear, the executors should contact the attorney to discuss the will with the dependants of the deceased. The attorney or the lawyer provide advice and determine whether the administration is a necessity or not. Legally, if the will is invalid, the court perceives it as though the deceased had died intestate. While respecting decease’ wish to appoint his wife, Phoebe, and his brother, Thomas as his executors, this will raise issues and concerns. As the case study documents, since Alfred’s death, many hearsays have come out. Alfred and Phoebe divorced in March 2009, Thomas does not wish to act as Alfred’s executor, and has had no contact with the decease for over ten years, the assets distributed in the will do not exist; some such as MG BGT sports car is said to have been sold in 2008. Astonishingly, Alfred never owned shares in British Gas and one of his daughter, Serena, died in December 2009. Alfred’s grand children include Serena’s children, Grace aged 9, Alina 7, Max aged 21, and Sandra, aged 6 at the time of Alfred’s death. Finally, Alfred had an affair with Michelle who both had a child. Now, the main question remains why the difference on the details presented in the will and the reality of the matter. This reveal that the will is invalid since it presents invalid information. For instance, the will contains the provision of the decease leaving $30, 000 to his daughter, Serena despite the fact she died sometimes back. The will continues to indicate that, Alfred left his MG BGT sports car to his friend Sebastian, while in reality; he had sold this property in 2008. The will regard the decease leaving $2, 000 worth of shares in British Gas to his nephew Patrick, while in reality, Alfred never owned shares in British Gas. These issues raise a significant concern of the will been invalid thus, demands the court’s support as discussed below. How will Alfred’s estate be distributed? Unfortunately, Alfred’s will seem to be invalid for several reasons. These include improper execution and grantor not being mentally competent and able to comprehend what they were doing when they executed the will. Following this, if the will is invalid for any of the above reason, the court treat it as though there was no will. At this point, the state that Alfred resides will choose how his property will become distributed. However, because there are living relatives, each will get an equal share of Alfred’s estate. In this case, the living relatives include his children, grandchildren, Michelle the decease concubine, and Portia. There should be equal distribution of Alfred’s assets among his children, and the disabled requires a life-long care. Studies affirm that; it is vital to understand certain circumstances that can affect the will such as, family changes, invalid executors, and lack of witnesses (Moncreiffe & Armstrong 2010, p10). Indeed, these factors are the key determinant of knowing whether the will is valid or not. Alfred’s case triggers many particularly on family changes of divorce. As indicated in the case, Alfred proposed his wife, Phoebe to be his executor despite having divorced some years back. Generally, a will can be disposed because of family changes in cases when beneficiary or the executor mentioned is no longer part of the family. A will without witnesses trigger accusations since, witnesses are the basic requirements of the will. In fact, for a will to legally binding, it should meet three requirements; must be in writing, signed by at least two witnesses, and signed by the person who documented it. If a will seems to lack three of the mentioned factors, it is paramount to investigate the will circumstances. For example, if the will lack witnesses signature, it is possible to judge that the will was not legally bound. If there are changes of the will prior to the deceased’s death and after his death, there may be cause of disagreement, which demands one to locate an estate-planning attorney to support in estate distribution. Following this, Alfred’s case demands an estate-planning attorney who will assist in estate distribution bearing in mind that the will is invalid. It is worth noting that, the testator must sign and date the will at the end, and if he or she is not able to sign it, he should direct someone to sign on his behalf before witnesses, and these counts as a valid will. To protect the will against fraud, almost every state demands the maker and witnesses of the will be present. If the witnesses are unmet, the probate court may decide whether to choose the will to probate since, judges respect these rules. In this context, one should bear in mind that, the witnesses do not need to have to read the will, but need to have watched the document signed. In consideration, witnesses should be legal adults for the will to be valid. Now, Alfred’s will lack witnesses who the court regards to dictate whether the will is invalid or not. Having documented will, Alfred never signed it nor did he invite witnesses to witness his will. It is no wonder, the will creates controversies of what is in the will, and what has become known. Alfred’s scenario creates a need to evaluate how distribution will take place. Alfred documented an invalid will in the sense that, most of the assets and funds indicated in the will never existed. For example, he had sold MG BGT sports car, never owned shares in British gas, loaned the collection of ancient clocks, his daughter Serena had died in 2009, and had divorced Phoebe, his wife in 2009. Since Alfred’s death, this information indicate that his will was invalid for as discussed earlier, he never signed nor did he invite witnesses. This creates the need to invite an attorney who will professionally guide on how to distribute and administer his properties (Redfield 1869, p88). Having this in mind, it follows that Alfred’s properties will be equalized among his relatives both that exit and do not exist in the will. Indeed, this requires thorough investigations to establish his relatives so that each member can acquire a share. In this regard, Michelle who was Alfred’s concubine demands a share with his daughter who has learning difficulties. Conclusion The two cases create a platform to understand the importance of having a valid will. Indeed, the two cases educate many on what indicates the will is invalid or not. As mentioned, it is significant for the will to be in writing, have at least two witnesses, and the testator should ideally sign the will. Failure to this would seem that the decease died without making the will thus, his estate might end up to people who he did not have close relationship with. Bibliography De Waal, M. J., Schoeman, M. C., & De Waal, M. J. (2003). Introduction to the law of succession. Lansdowne [South Africa], Juta. Francis, A. (2003). Inheritance Act claims law, practice and procedure. Bristol, Jordans. Jones, I. (1993). Law of succession. London, Blackstone. Law Reform Commission of Papua New Guinea. (1978). Law of succession. [Waigani] Papua New Guinea, The Commission. Lifford, D. (2003). Quick & legal will book. Berkeley, Calif, Nolo. http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&db=nlabk&AN=91519. Mellows, A. R. (1977). The law of succession. London, Butterworths. Moncreiffe Of That Ilk, I., & Armstrong, J. W. (2010). The law of succession: origins and background of the law of succession to arms and dignities in Scotland. Edinburgh, John Donald, with assistance from St. Andrews Fund for Scots Heraldry. Redfield, I. F. (1869). The law of wills. Boston, Little, Brown. http://www.gale.com/ModernLaw/. Schouler, J. (1915). Law of wills, executors and administrators. Albany, N.Y., M. Bender. http://www.gale.com/ModernLaw/. Smith, M. P., Grossman, R. L., & Hollinger, J. L. (2001). Pennsylvania fiduciary guide: a handbook for executors and administrators. Philadelphia, Pa, G.T. Bisel Co. South African Law Commission. (1983). Law of succession: interstate succession. Pretoria, The Commission. Ventura, J. (2002). The will kit. Chicago, IL, Dearborn Trade Pub. Read More