Friday, April 25, 2008

Law of Succession - Lesson 3

Sample of Wills - Basic Clause in the Will
  • There is no standard format on how will should be written, nevertheless, this can be a guideline to make a good will

1. Opening clause

  • This is the part where the testator identified himself
  • It is important to state name or nick name if any

2. Revocation clause

  • This is the part where the testator state that he revoked any earlier will that he has made
  • This is regardless whether there is any will that has been made earlier

3. Appointment of executor

  • This is the part where the testator will appoint the executor
  • The executor will be responsible to administer the will
  • It is important to appoint someone that are willing and already give consent to the executor
  • Problem will arose if the executor did not give consent as he will be the one who responsible with the testator's property upon his death

4. Appointment of trustee

  • This is the part where the testator appoint a trustee
  • A trustee is someone who will hold the property of the testator for the benefit of a person below the Age of Majority
  • Nevertheless, this is an optional task

5. Appointment of guardian

  • This is the part where the testator appoint person to be the guardian of the underage children of the testator if any

6. Assets distribution

  • This part related to a specific instruction on who will get what and how much relating to the distribution of assets made by the testator

7. Residuary clause

  • This part related to a specific instruction on what will be given under residue to a specific person
  • Residue is a distribution of balance of asset that are not mention in the will that need to be distributed

8. Special instruction

  • This part related to a specific instruction that is not related to the assets
  • For example, the instruction on how the body of the testator should be cremated

Type of Properties that can be Disposed by way of Will

1. Land and Building

  • This type of property concern with immovable property
  • For this property to be valid under a will, it need to be free from encumbrances which mean that is is free from any subject matter such as lease to a bank
  • Not only that, it need to be make sure that the property has no joint ownership or the property is not a joint property such as house or land sharing
  • The testator must also posses the right or ownership of that property

Papoo v Veeriah
FACT:
A widow applied for the transfer of her late husband's temporary occupation licence (TOL) to her own name as the sole beneficiary of the estate of the deceased.
HELD: The court dismissed her application stating that the property cannot be transferred as it is a TOL land. The late husband did not possesses any rights or ownership on the land as it is only been given temporarily to him under the TOL agreement

2. Specific gifts

  • This is an assets that are specifically describe so as to be readily ascertained

3. Property abroad

  • For a property that is immovable situated outside Malaysia, the local law of where the property reside shall be applicable in the making of the will
  • The foreign law of succession will be used

4. Shares

  • Shares can be made as a will but it is subjected to the approval of the company
  • The approval is needed as sometimes, for a limited company, the members usually are closely related, nevertheless, by way of putting shares in a will, this will entitled the beneficiary who will be a complete stranger to hold rights against the company

5.Life assurance policy

  • For the purpose of life insurance, the person obtaining the life insurance are required to nominate who ever he thinks fit to received the insurance upon his death
  • Putting the life insurance in a will, lead to a conflict in interest between the beneficiary and also the nominee

Types of wills

1. Non-cupative and holographic will

a. Non-cupative will

  • It is a form of an oral will
  • It is dictated by the testator during his illness before a specific number of witnesses and later reduced into writing
  • There is a limited exception to the requirement of a valid will; made in writing

Ooi Siew Hong v Ooi Kim Lan
FACT: The testator is said to profess 3 religion at one time. Upon his death, none of the 3 religion provided for the way of disposable the immovable property of the testator according to the local law as, the testator had leave an oral will on how his property should be distributed before his death
HELD: The court held that the oral will is amounted to non-cupative will, thus, it is valid provided that it will be reduced to writing later on

b. Holographic will

  • This is a will that are entirely written and signed in the handwriting of the testator
  • Witnesses are not needed as the will was made entirely in the testator handwriting

2. Conditional will

  • This type of will only made effective on the happening of a specific event as stated in the will by the testator in a form of condition
  • In Re Vives, the court held that it is a will made in terms subject to the happenning of an event and that event must occur before the will can be operative
    In the case of lindsay v lindsay, the court stated that a provision in a will saying "if i shall died at sea or abroad, i will give my property to Mr X" amounted to a conditional will
  • In the case of Re Thomas, the court held that a provision in a will saying that 'if i survived my wife and inherit under her will, i will donate her property' is also amounted to condition will

3. Joint will

  • It is a document which consist the wishes of several testator and it is treated as the will of each of them
  • Each of the testator will then signed the will in a single document
  • The significant of having a joint will in a 1 single document is that it reflect the mutual intention of all of the testator
  • In the case of Re Duddell, the court stated that to make joint will valid, each testator who is a party to the joint will must execute the said will in accordance with the Will Act
  • The requirement of a valid will are still standing in joint will
  • The will will take commence once the testator passed away, and it is not material to have all of the testator died before the beneficiary enjoyed the benefit of the will
  • The will is revocable before the death of the testator and the revocation can only be made on the individual portion of the testator
  • The remaining testator would not be allowed to revoke the will of the deceased testator

4. Mutual will

  • The concept of mutual will is similar to joint will
  • Mutual will is a will that involved more than 1 person with a minimum number of 2 person
  • It usually involved family members and friends such as husband and wife and best friend
  • The will will state that the survivor of the testator will enjoy the property of the deceased
  • Upon the deaths of the survivor testator, the property will then be given to the beneficiary as agreed by all of the testator
  • There are 3 element of mutual will:-

i. There must be an agreement to create a mutual will

  • For this purpose there must be an ample evidence to show that all of the testator have intended the same
  • This is as stated in the case of Dufour v Pereira

ii. The will is not revocable upon the death of any one of the testator

  • If the will were to be revoked after the death of any one of the testator, it will create an unfair advantage
  • Nevertheless, the will can be revoke while both parties are still alive

Re Hagger
FACT: A Husband and wife make a joint will in which it was expressly stated that the partners had agreed to dispose of their property in the manner describe in the will and further, it was stated that there would be no alteration or revocation of the document without consent from the other testator.
HELD: The court held that this is not a joint will, instead it need to be treated as a mutual will due to the fact that there is a clause stated that it is not revocable

iii. Mutual will contain an element of trust

  • The survivor testator has the duty to passed the property to the beneficiary upon his death
  • The statement above proof that there is an element of trust involved in mutual will
  • In the case of Re Green, the mutual will shall only bind the deceased property but not the personal property of the survivor. The court also decided that it is legal for the other testator to make a new will upon the death of the deceased provided that the deceased property will not be include in the testator's will

5. Privileged will

  • Section 26 of the Will Act (WA) provided that no formal requirement is needed in order to create a privileged will
  • Privileged will can only be made by soldiers, airmen and sailors
  • Under the common law, privileged will can only be ceased when the lives of the person is in danger
  • Further, the member of the arm forces must be in an actual military service when they made the will
  • Section 26 (2) of WA stated that the will can be made in oral or in writing
  • Section 26 (4) of WA stated that no execution are needed in the will
  • Section 26 (5) of WA stated that there are no requirement to follow procedure of a normal will
  • Section 26 (6) of WA stated that the will only have a limited period of existence; 1 month
  • In the case of Re Wingham, Lord Denning said that the meaning of in a great danger must be interpreted widely and not necessary mean in a real danger

In The Estate of Ada Stanley
FACT:
The deceased was a nurse employed under a contract by the war office on hospital ship. She wrote a letter giving direction on how to disposed her property, but it was not attested
HELD: The court held that this falls under a privileged will, thus, it is a valid will

In B Knibbs
FACT: A barmen who work on a ship was having a conversation with his friend. He said that he want to leave his property to a beneficiary during the conversation
HELD: The court held that the conversation happen during a spare time, thus, the barmen would no have the element of intention in making the will

  • Even though privileged will does not followed certain requirement of a normal will, but it still required the element of intention from the testator to make the will
  • This will is revocable as long as the revocation was made before the death of the testator as in the normal will requirement

6. Incorporation be reference

  • The doctrine of incorporation allows a document which has not been executed to be put in the original will
  • This will then form a part of the will
  • Some detailed that are not being mention at the time of making the will can be incorporated into the will later by the doctrine of incorporation
  • The element of doctrine of incorporation are:

i. The doctrine referred in the will must be in existence at the time the will was made
ii. The document must be referred to as being in existence
iii. The document must be clearly identified

  • The effect of the doctrine of incorporation will is that it will make the incorporated document to be admitted as part of the will

Singleton v Tom Linson
FACT:
There was an argument that doctrine of incorporation should not be apply as the witnesses of the will could not remember seeing the schedule of that document at the time of execution
HELD: The court held that the doctrine of incorporation failed in the part of the witness

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