Q1. Essential Characteristics of a Will

A will is a legal declaration by a person, the testator, where he or she names one or more persons to inherit his or her properties, and provides for the distribution of his/her property at death. A will is not limited to the real property, as it has always been perceived; will and testament have been used interchangeably over a long period of time. According to the Wills Act 1837 (amended), a will has the following characteristics.

Characteristics of a Will

No will shall be valid unless the testator is at the age of 18 years old. In such case, it is perceived that the testator is an adult. Most laws have recognized this as the legal age, but in some cases, the testator may be several years younger in some places. However, it does not necessarily mean that ones will is valid, if he or she is of a legal age. The legal representative should advise on validity of the will in any circumstances. In the case, when the testator is below the legal age, then the legal representative and the judge overseeing the case should give directions on the same.

The testator must be psychologically fit; this means that the testator should be fully conscious that he or she is writing a will and know the overall status and extent of his/her property, and know the content of ones bounty, i.e. your spouse, descendant, and other relatives that would ordinary be expected to inherit your estate.

Although, a testator does not have to be mentally unfit for anyone to contest the will in court. In the case, where the testators soundness of mind is contested, then the psychiatric report from a specialist in that field should help the judge to make a decision. However, in a case like this, the testator must declare his or her intention. In most cases, a will can always be revoked by the testator, as long as he/she is alive.

The testator should not have been induced or compelled to sign the will, unless the unavoidable circumstances that compromise his/her ability to sign have happened, e.g. accident or sickness. In such circumstances, the testators lawyer may request one of the witnesses to sign on his/her behalf. Such situation requires lawyers guidance or even knowledge of the state law on will. In a situation where the testator have been compelled or even forced to write a will in a given form, they will have strong grounds to be contested in court.

The testator may also revoke such will in case he/or she is still alive. Where one is dead, then the perceived beneficiaries can seek justice in the courts, as long as they can prove that the testator did not write the will voluntarily. This section of the law applies only to the wills that are executed in accordance with the law of New Zealand and other countries where the Wills Act 1837 (U.K.) is in force.

With accordance to the requirements of the Wills Amendment Act 1955, all appointments made by will, in exercise of any power, shall be invalid, unless the same are executed in the manner stipulated by the law.

Disadvantages of Dying Intestate

Intestate is a situation, when someone dies without making any will. Dying without a valid will have numerous disadvantages. A major disadvantage is that your beneficiaries may not be able to receive any of your property from your estate for a long time. This is because the court may have to determine who your legal heir should be and establish who, among your legal heirs, should receive the inheritance, and the way it should be distributed. In the case when the deceased had more than one dependant and wanted a specific property for one specific heir, he or she might end up not getting it.

In Paola & Ors v State Trustees Limited [2012] VSC 158; Application by stepsons Intestacy Whether deceased testator had responsibility to provide for the proper maintenance and support of stepsons Amount of provision, it took more than two years for the judgment to be issued. The case had been filed in February 2010, while the judgment was issued in April 2012, and the deceased had passed in May 2009. It, therefore, means that it took his beneficiaries about three years to access the deceased estates.

Dying intestate is costly no matter what. It ranges from the legal costs to taxation. Youll definitely pay more taxes when you die, and the only way to differ these taxes is to leave a will where all your estates are under your spouse. Dying intestate will make you pay taxes that otherwise you could have not paid. The cost of legal fee could be easily avoided, if you leave a will. The deceased wishes are not always met. In most states, when the deceased is declared to be intestate, the state of jurisdiction then takes over and prepares a will for the individual. In most cases, the outcome of the states determination is not what the deceased would have wished had they prepared a valid, accurate will.

Q2. Advice for Valerie

Valerie has her right to challenge James will. On the one hand, James had given her the painting as a gift for the years she had served him. Secondly, her case can be argued from a point of a promise that the testator did not fulfill in his final will. Valerie can challenge James will under the law reform (Testamentary promises) Act 1949 for the testator breached a promise of giving her the painting and rather gave it to his son Sean. Testator had given Valerie the expensive painting as a gift when he was ill.

James had not only promised her the painting, but went ahead to handed it to her. By doing that, he had fully entitled Valerie to the painting and he didnt give it to her officially, stating it in the final testament, which was his undoing.

In order for Valerie to contest the painting under the Law reform (testamentary promise) Act 1949, she does not have to be a relative to the testator. Like Valerie, anyone can claim it, if she/he can show that she/he worked or provided services for the testator and that the promise was actually made. This is what Valerie needs to prove in court in order for her claim to be fulfilled.

According to the Act, the testator must have promised to reward you by leaving something in their will. Considering that, Valerie has the painting that she was given on the wall of the sitting room in her own quarter of the house. Then she has substantial grounds to show that the testator had actually given her the painting before he passed on. However, it will not be a walk in the park for her. Sometimes it can be difficult to prove that a promise was indeed made. Valerie will need to provide evidence that the painting had actually been given to her.

Considering that no note was written during the time the gift was given to her, then for her case to be successful there has to be a witness, who was there during this time when the painting was given to her. In any case, if there was a colleague, who was present, then she/he will need to appear as a witness in the court. In the case if the testator had written a previous will, where he had given the painting to Valerie, then it can also be used as evidence for her case.

In such a case, with all evidence and testimonies provided to the judge, the decision will be made on the circumstances that Valerie provided work or services, during which the testator had actually made the promise. The judge will also consider the value of the work that Valerie offered to James and the relation to the value of the painting that she was given. The submissions of Sean, his son, will also have weight, as he is the beneficiary of the painting according to the testators will.

With all the considerations, the court will decide to award her the painting. However, Valerie will have to file her claim with the court within 12 months after probate is granted for the will. However, the court has liberty to extend the time limit; this can only happen, if the estate has not been transferred.

Q3. Advice for Russel

Glenis made her will out of fear of anticipating that he might not return from Australia. This does not make her will invalid. In fact, from the will itself, its clear that he complied with the provisions of Wills Act 1837 (amended). However, Russel needs to understand that the will has a lot of loopholes that would make it easily contestable in court.

First, the will has a controversial clause in it lest I should not return from Australia, I leave all my property to my brother Russel. Taking a closer look, a legal mind will argue that the fact that Glenis did in fact return from Australia and lived for five more years makes the will null and void. However, on the other hand this was the only final testaments that Glenis has ever written regarding her estate.

Secondly, Glenis had other beneficiaries to her estate, her other two sibling. In this case, there is a need to determine whether the two other brothers were dependants to Glenis. The age of the two and their provision before Glenis death need to be established. The questions that have to be answered are who was providing for them and what their ages were. These are the major questions that Glenis needs to have answers to before defending his sisters will, because they will mainly provide the swing board in this case.

According to English inheritance (provision for family and dependants) Act 1975, the law is entitled to ensure that those, who have been left behind, get a fair share of what they deserve. Under Singapore jurisdiction, the law permits a spouse to receive a much smaller share than that in the English inheritance Act. However, this act has widened the class of persons that may apply to the court. They include persons that the deceased treated as family and persons that the deceased had a responsibility of maintaining at the date of his/her death.

In reference to this Act, Russel should be aware that if his sister lived with her brothers as family, then they are fairly entitled to a share of her estate. Also, considering that the conditional clause of the will holds, then its prudent for me to advise Russel to request an out of court settlement of this case. From the situation at hand, it is more likely that the court will declare the deceased intestate. If this was to happen, then the powers to decide who takes what will be in the hands of the court.

There are still a lot of disadvantages of the court declaring his sisters interstate. There will be cost implications and it will take a while before the ruling; hence, inconveniencing the family on the matters that would otherwise relied on provision of Glenis. According to the inheritance (Family provision) Act (Cap. 138, 1985 Rev. Ed.) provision of reasonable maintenance is limited to the legitimate children. However, in the case of Glenis, these are not her siblings; therefore, the extent, to which she was reliable to provide maintenance for them, will be determined by the court.

Considering all interplay of facts and situations that surround Glenis will, it will be prudent to advise Russel to consider an out of court settlement with his brothers. This will save the family from the costs that they would have otherwise incurred in the court proceedings.

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