Wednesday, April 16, 2008

Law of Succession - Lesson 2

5. Characteristic of testator (continue)

  • Testator can be either partial or total testator which mean that he can either make a will to all of his assets or part of his assets
  • Section 2 (2) of Will Act provided that the act does not applicable to Muslim as Muslim is govern by the Faraid system
  • Revocation can be made but only during the testator lifetime
Valid Will
  • In order for will to be valid, there are 2 elements that needs to be consider; capacity and intention (animus testandi)
  • Capacity can be further devided into 2; age and soundness of mind
  • Intention can be further devided into 3; suspicious, mistake and undue influence

A. Capacity

1. Age

  • The age of a person making a will must be over 18 as stated in the provision in Age of Majority Act
2. Soundness of mind
  • Sound mind means that a state of a person who understand tha nature of his act
  • In the case of Bank v Goodfellow, the court stated that soundness in mind must be present at the time of making the will. Sound mind in this case refer to an understanding of the nature of the business which he is engages on
  • In Harwood v Baker, soundness in mind can be ascertain when the person is at least aware of the other person who may have claim on his estate even if he decide not to benefit them
  • Burden of proof lies on the propounder who possess te duty to proof that the will is valid under the degree of balance of probability
a. Delusion
  • Delusion means irrational believe which can't be erradicated by rational argument
Bank v Goodfellow
FACT: The testator was affected by various delusion, particularly that he was being persuit by an evil spirit.
HELD: The will created was valid due to the fact that the interval of the evil spirit is not continously
  • In Re Bohrman, the court stated that when a testator is unsound in mind, the will that he created can be either partial or wholly invalid as determind by the court
  • In Ewin v Bennett and In the Estate of Walker, soundness in mind need to be present at the time time the will is created and also, there must be some interval when there is a delusion for the will to be valid

b. Old People/Age
  • If there is a doubt of the soundness mind of an old people, medical report of their condtion must be obtain from a medical practitioner

c. Drunk
  • In Chana v Chana, the court held that for a heavy drinker who drink regularly, the will made by them is valid because they are not drunk at all time, thus, the habit of drinking will not prevent the person from creting a valid will
B. Intention
  • The testator must have the intention to create the will
  • The testator must have the knowledge of the content of the will
  • The testator must have approve the content of the will
  • Determintaion of intention can be seen in the case of Re Khibbs, where there must be a statement of the deseasd wishes for the disposition of his properties upon his death and it is conveyed to the witness
1. Suspicious
  • If the will is suspicious in the eye of the court/judge after there is an application of probate, the court would not grand the probate
  • In the case of Barry v Butlin, the court need to make sure that the suspicious is removed before the probate can be granted
2. Mistake
  • Mistake can be defined as an error in comprehending facts, meaning of words or the law, which causes one party or both parties to enter into a contract without understanding the obligations or results
  • There must be no mistake when the executor execute the will
  • If there is a mistake on the will or on the creation of the will, the testatoris siad to not have the testandi/intention
  • In the case of Re Meyer, when there is a mistake, the court may decide that the will was made without the testator knowledge and approval, thus, can be deemed invalid
  • Mistake need to be considered on 2 ground; content and document
3. Undue influence, fraud and coercion
  • In order to make a valid will, the court need to ascertain that the will is not make under undue influence, fraud or coercion
  • In Hall v Hall, the court decided that there must be no coercion, where a testator may be 'led but nt driven'. This means that the testator may be guide in making the will but not force. Coercion in this case refers to threat or pressure to the testator
  • In the case of Wilkinson v Joughin, the court stated that fraud happen when the testator has been delibirately deceived by a person or being fraud, thus, the will is invalid
Formalities
  • There are basically 4 main formalities to be follow in order for the will to be valid
  • The elements are writing, execution, witness, and attestation
1. Writing

a. Language
  • Any language as long as it understandable
  • In the case of Whiting v Turner, the testator was an english man but he made the will in french, nevertheless, the court held that the will is valid

b. Can be type or hand written as stated in the case of Re Moore

c. Writing material
  • Normally paper will be used but in the case of Hudson v Barnes, an empty egg shell make a valid will, thus any type of material is legible
2. Execution
  • Means the act of signing by the testator
  • According to Section 5 (2) of the Will Act, the will can be signed by the testator or by any other person in testator presence
  • Initial, normal or different type of signature can be used
  • In the case of In b Savory, initial signing of the will is accepted by the court
  • Testator may be assisted by a third party in putting his signature as stated in the case of Futton v Kee
  • The signature need to be put at the bottom of the paper, nevertheless, the law does not prescribe on which part of the document need to be sign by the testator as in the case of Re Stalman
  • The testaor must be presence both physically and mentally
3. Wintness
  • Requirement of at least 2 witness that needs to sign the will can be seen in Section 5 (2) of Will Act
  • There are two views in English cases prtaining to witness signing; at the same time, or deal individually
Re Colling
FACT: Testator was a patient at the hopspital where he asked another patient and a nurse to be his witness when he sign his will. At the time of sifning, the nurse was call to attend another patient. Nevertheless, he continued the signing process with the other witness. Later, when the nurse return, the nurse then put down her signature and acknowledge the will
HELD: The court decided that the will is invalid because the witness need to attend the signature at the same time

Wyatt v Berry
FACT: The testator wanted to make will and that he thought that he only need 1 witness. When the will was made, bth the testator and the witness sign it. Later he find another witness and sign it
HELD: The court said that the probate shall be granted

  • Witness may sign the will at any place on the will as decided in the case of Roberts v Phillips
  • In Re Gibson, the court said that even though there is no provision on the qualification of the witness, but a blind witness will make the will invalid as he can't witness the execution by the testator
  • Under Section 9 of Will Act, beneficiary cannot be the witness as they have the potential interest under the will as stated in the case of Clarke v Bruce Lance & Co
  • Under Section 10 of Will Act, creditors can't be witness
  • Under Section 11 of Will Act, executor is not incompetent to be the witness
4. Attestation
  • The format would be "Sign by above name 'testator' as his last will in the presence ofus the witnesess"
  • The format acknowledge that the attestation has take place

This is all for now. See you in the next post

4 comments:

Anonymous said...

thank you. this helps a lot.

Ily. said...
This comment has been removed by the author.
Anonymous said...

Can I have the citation of those cases? Thanks

Anonymous said...

Thank you......this really helped