The Role of Witnesses for a Valid Will - Essay Example

11 May Law of Succession Answer to Question- I The Role of Witnesses for a Valid Will Immediately, afterhaving been drawing up a Will, it will not be regarded as legally binding until and, unless two witnesses have signed the same. Further, there is an obligation from the above witnesses to certify that the testator has signed the will without any pressure from anybody else and the signing of the will is complete in all respect. Further, a witness is not required to read over the contents of a Will and any clauses in the Will could be wrapped up with a sheet of paper if needed. In order to be a valid Will, the Will is to be witnessed and signed in a right way, and the following should be ensured: Before any signing begins for a Will, the testator and two adult witnesses should remain in the same room. It is necessary that both witnesses should be of eighteen years old or more. The testator should sign the Will first accompanied by each witness. When a testator dies, the two witnesses should be traceable if needed. The witness should have a sound mind and can understand what they are doing. No one (both testator and the two witnesses) should leave the room before signing of the Will is completed. (www.makingawill.org.uk). Where the witness will usually sign in a Will? An adult witness will have to sign the Will at the bottom of the each page; At the concluding part of a Will, a witness has to sign at the place mentioned as “witness to sign” and not at the end of that page. The witness must not only sign at the bottom of each page but also in the place indicated as “witness to sign” along with name, address, occupation, the date and the place. (www.wills-scotland-co.uk0. n this case ,Harold should sign the Will at Maria’s office or at Barbaras house and both the witnesses namely Barbara and her husband Paul should sign the Will immediately after Harold, and they should not leave the room before the signing the Will. Further , Barbara and Paul should not sign at the back of the will and should sign at the bottom of each page but also in the place indicated as “ witness to sign” along with name , address , occupation , the date and the place. How many persons can be a witness in a Will? Only two. Both the witnesses must be present at the same time when a testator signs the Will. In Re Bravda (1968), it was held that where the Will was witnessed by four witnesses and two of them were beneficiaries and hence the Will was declared as void. (www.funtriva.com). d), he should not sign the Will .Hence, Harold should be advised accordingly. Revocation of a Will Revocation of a Will includes rules relating to how a valid Will is made unmade or invalid. Section 18 and 20 of the Wills Act 1837 deal with revocation of a Will. However, in case of any dispute, the courts will interpret the rules which offer some quiet challenge and interest in the subject. Under English law, a Will can be revoked by An act of revocation like tearing up, destroying or otherwise burning it. As per section 18 Wills Act, due to change of circumstances. It is normally revoked ipso facto due to a latter or subsequent marriage. Section 18(1) of the Wills Act 1837 states that though a voidable marriage makes a Will invalid but a void marriage does not revoke a will as held in Re Roberts.1 By the execution of a codicil or Will. (Collier & Collier 273). Under Wills Act 1963, the second instrument is effective to cancel the first Will, if the second Will adheres with any law concerning the legality of the first one, though not effective by the law concerning its own validity. (Collier & Collier 275). In general, a revocation clause will cancel all earlier testamentary aspirations, If intended or worded to act so, but may not be effective if a divergent intention is apparent as held in the Estate of Wayland.2 Where a revocation clause is introduced without the knowledge of a testator and his consent, then such Will could not be valid under the law as held in Re Phelan3 In Hobs v. Knight4 , it was held that it was adequate that “the spirit of the instrument is annihilated. In Re Adams5, it was held that striking off the witnesses’ signatures or the testator’s signature or erasing them will be adequate. The phrase “otherwise destroying “must be interpreted as tearing or burning. In Cheese v Lovejoy, it was held that drawing a line through a Will and then writing that “all these writings are cancelled” and throwing away the will is not adequate. In Elms v. Elms and in Perkes v. Perkes, it was held that if the testator fails to conclude what he aimed to do by way of destruction, then in such scenarios, the Will may not be deemed to be revoked. In Re Sabatini6 , in was held that in case of revocation, the testator should have the objective to cancel the Will, the same magnitude of mental capacity being needed as for making a will. In Gill v. Gill, it was held that the objective to cancel must correspond with the destruction of the Will. In Brunt v. Brunt7, it was held that there was a failure to cancel since the damage to the Will was made by a “very drunk” testator. In this case, Harold had a row with Hope and Jason. Hence, Harold is having every right to revoke his earlier Will by applying the decision made in the case Re Sabatini and in Gill v. Gill, and Harold can make a new Will by revoking his earlier Will. Whether a Stranger or an Unknown can be named as a beneficiary under a Will? A testator can name any person as a beneficiary in his Will. (www.whichlegalservice.co.uk). In Re Sinclair ( deceased) 8case , the testator left his estate in whole to his wife provided if his wife survived for more than a month after his death and if not , the whole estate will be passed on to the Imperial Cancer Research Fund. Hence, Harold is having every right to name a stranger like Jayshree in his Will other than Hope. Answer to Question-II What will happen if one of the executors got divorced? If a testator is a husband, and if he appoints his wife as one of the executors of the Will, then the divorced wife will lose his or her executor position. Thus, in case of a divorce, anything given under a Will to an erstwhile spouse is revoked. Thus, a divorce will result in revocation or cancellation of any gift or position given to an ex-spouse under a Will. Section 18 A( 1) of the Wills Act 1837 states that any bequest or devise to the erstwhile spouse lapses and it also states that the Will takes effect as if any appointment of erstwhile spouse as the executor or as an executor and trustee of the Will were omitted. The Law of Reform (Succession) Act 1995 describes that it should be handled as though the ex-spouse expired on the divorce date. In this case, Jasmine will lose her executor position, and Julius will be the sole executor, unless Jonathan expressly has stated via another Will that despite divorce, both Jasmine and Julius will be the executors for his Will. (www.funtriva.com). Whether Jonathan son, David, (due to a brief affair with the au pair Jonathan had) will get a share in Jonathan’s assets? According to Law Reform Succession Act 1965, if cohabitants are to be provided for but imposes a condition that Jonathan and David’s mother should have lived together for more than two years. If they have not, then David should establish that he is having dependency upon the testator Jonathan. Executors An executor is an individual who is charged with the duty of overseeing how a Will is administered. It is prudent to appoint at least two executors and in the event of refusal by an executor or if an executor dies before the testator. The purpose of appointing two executors is to have an eye on each other. In the case of property or land, it is sometimes essential to have two executors to facilitate them to act. In case of probate, only first named four executors will have to prove the Will and in case of more executors, it will be cumbersome for the signing of receipts, the signing of withdrawal forms, deeds, etc. There is a provision to appoint co-executors and in such cases, each executor will have analogues authority and power and none is senior to other executors. Sometimes, separate executors can be appointed, and this can occasionally be more beneficial where specialised knowledge is needed. (Bowley 37). It is always advisable to appoint individuals’ with stable, good health, reliable and competent as executors. The Trustee Act 2000 stipulates that in the absence of an express clause in a Will, a trust corporation is empowered to charge a rational fee or remuneration for services rendered by a trustee or by an executor. It is always advisable to add a clause in a Will about alternate executors when original executors become incapacitated. Jonathan’s Will do not contain any clause what if the executors have become incompetent due to operation of law like undergoing an imprisonment or in case of divorce. (Bowley 39). Removal of an Executor of a Will In general, beneficiaries of a Will can initiate a legal action for removal of an executor of a Will. Normally, an executor can be removed by the Court if the beneficiary is able to demonstrate that an executor is not capable of carrying out his duties and is not suitable for the position or has become unqualified since the testator appointed him. If an executor has been convicted for any crime which may not be associated to the estate and sent to jail, whether temporarily or permanently, then such imprisonment will bar him from carrying out his duties as an executor. The beneficiaries have to demonstrate that the executor has a mental or physical handicap, whether on a temporary basis or on a permanent basis. Further, unsuitability is the worst one to corroborate as the courts are always construing the situation at hand. Conflict of interest is represented by unsuitability, which normally involves either a conflict of interest, thereby compelling the court to inquire into executor’s capability to function neutrally or to indulge in some guise of grave misconduct. (www.law.freeadvice.com). Jonathan’s brother Julius were incapacitated , beneficiaries should apply to the court to appoint some other persons as executors of the Will. Whether David can make a share of Claim in Jonathan’s estate? Regrettably, clashes over the inequitable division of the deceased properties and assets are the regular feature nowadays. In these scenarios, under the inheritance (Provision for Family and Dependants) Act 1975, a claim could be brought against the executors of the Will. However, if a testator fails to make a provision in his Will for his Ex-Spouses, Spouses, Civil Partners, Separated Partners, other dependents and Children, then such related persons may raise a claim for Adequate Financial Aid under the Inheritance (Provision for Family and Dependants) Act 1975. This will be mainly footed on the concept that “realistic financial provision” was not provided under the provisions of the Will. In this scenario, a number of claimants who are having connection with the deceased can make a claim. If such claims are made, then the court will take into recognition a number of scenarios, including the resources and the needs of both the person bringing the claim and the recipients under the Will, together with the nature and the size of the estate. It is to be noted that the court applies various yardstick to spouses than other types of individuals initiating a claim. An erstwhile civil partner or a spouse A civil partner or a spouse Persons who are construed as a child of the testator. Children Cohabitees Persons who were looked after by the deceased. It is to be noted that contesting the contents of a will or its genuineness is an extremely grave province of law. Further, strict timelines are applicable to initiate a claim against an estate which is usually six months from Probate, which is being granted and if a claimant does not initiate contesting procedure within the time limit, assets may be distributed as per the wishes of the Jonathan. Hence, David should initiate his claim against Jonathan’s estate before the expiry of six months of Jonathan’ death. (www.mowbraywoodwards.co.uk). Doctrine of Lapse If a testator bequest to someone and that individual dies before the testator, then the Will can be treated as though it was not bequested and the bequest will not materialise and the beneficiary’s estate will not receive the bequest. Unless a testator includes an alternative beneficiary in the place of a beneficiary who died before the testator, the value of the residue of the testator’s estate will be increased by the quantum of bequest bequested to the beneficiary who died.( Bowley 75). Under this concept, the general principle is that a bequest or a devise under a Will fails where a beneficiary dies before the testator’s death. However, there is an exception to this doctrine where is a gift is made to class of individuals who are related to the testator? In Ling v. Ling, Malcolm Ling was the testator and however, his wife predeceased him in advance by some months. The testator had two kids, a son who died earlier than that of the testator by ten years, but he had a minor son. Barclays Bank Limited was the executor of this Will. The Will stated that the testator had earmarked his residuary estate in favour of Mrs. Ling provided if she survived him by one calendar month. During May 1999, the testator died and sometime later, a probate of the Will was given to Barclays Bank. The daughter of the Testator wanted to inherit her father’s whole estate in exclusion of the grandson of the Testator, who was a minor. The Claimant pleaded in her plaint that the court has to decide whether Clause 4 of the Will was to be construed as to bestow a class gift to: To the testator’s both the kids Else, only those kids of the testator who survived him. It was held by the Court that the stipulations of s.33 (2) a , b & c had been met with and there was the non-existence of any opposing views as seen by the Will. As regards to the question whether the grandchild of the testator must fulfill the twenty-one years of age needed in clause 4 of the Will , though his father was not a minor when he died . Both the counsels of the grandson and the claimant had agreed that the grandson should latter meet that age requirement. It was held that s.33(2) functions by including in the class ,the issue of the deceased child and restricting, by section (3), their interest in the share or gift which their parent would have enjoyed. This case law signifies that while drafting a Will, the proposition of s.33 (2) Wills Act 1837 should be brought to the notice of the testator. Further, adequate attention should be given as to whether the provision should be averted explicitly wherever apt. The claimant’s submission was focused around the concept that the Testator demonstrated intent to keep out the provisions of s.33 (2). (www.trustees.org.uk). Jonathan has bequeathed his paintings in Riverdale Place to his friend Marcus. Later, Jonathan agreed to lend 3 paintings from Riverdale Place to the British Museum, where they are currently on display. Marcus can make a claim to the British Museum for the returning of these paintings as these paintings were bequested by Jonathan to Marcus through a valid Will. As mentioned in Jonathan’s Will. James will receive a powerful bike as in 2008, Jonathan sold his sports car and replaced it with a powerful motorcycle. Samantha died in a car accident 6 month before Jonathan’s death. Under the doctrine of lapse concept, the general principle is that a bequest or a devise under a Will fails where a beneficiary dies before the testator’s death. Since Jonathan did not include an alternative beneficiary in the place of Samantha, who died before the testator, the value of the residue of the testator’s estate will be increased by the quantum of bequest bequested to the Samantha, who died before Jonathan. Joseph will receive the Ash Lodge, in Surrey as Samantha predeceased. All the grandchildren who had attained the age of 19 will receive a share in the £50,000 bequeathed by Jonathan. Since Helen predeceased in January 2006, all the residuary estates will go to Joseph, the only surviving legal heir of Jonathan. Works Cited Bowley, Gordon. The Self-Help Guide to Making Your Will. Oxford: How to Books Publications, 2003. Collier JG & Collier JG. Conflict of Laws. Cambridge : Cambridge University Press,2001. “www.funrivia.com.” March 2009. English Wills and Intestacy. 11 May 2011 “www.law.freeadvice.com.” February 2011. Removing the Executor of a Will. 11 May 2011 “www.makingawill.org.uk.” April 2010. Writing a Will. 11 May 2011 “www.mowbraywoodwards.co.uk.” 13 September 2007. Challenging Wills and Claiming Against Wills. 11 May 2011 “www.trustees.org.uk.” April 2011. Testamentary Class Gifts to Children. 11 May 2011. “www.whichlegalservice.co.uk .” January 2011.Frequently Asked Questions. 11 May 2011 “www.wills-scotland.co.uk.” May 2010. How do I Sign My New Will. 11 May 2011 Read More