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TOPIC 11. THE LAW OF SUCCESSION
Text 1
Valid Wills
Exercise 1.Read the text and answer the following questions:
1. What is the age at which a person can make a valid will?
2. What does signing a will mean?
3. What is the function of the witnesses while signing a will?
4. Can a will be cancelled?
5. What does the execution of a will indicate?
The law of succession has developed rules to govern the disposition of a person's property on his or her death. Every person who dies will either die «testate» (that is having validly executed a document called a will) or «intestate»(that is not having executed such a document). By making a will the deceased exercises the maximum possible control who is to inherit from him or her. It also serves to prevent argument between survivors and in large estates to minimise liability to tax.
Subject to the provisions of the Inheritance Act 1975 a person may dispose of any property which remains after the lawful debts of his or her estate have been paid in any way at all. But in order to do this the person must execute a valid will.to
Eighteen is the minimum age at which anyone can make a valid will, except for «a soldier being in actual military service or any mariner or seaman being at sea», who may make them under age 18.
Soldiers and seamen may also execute oral wills, but otherwise a will must be:
a) a document in writing;
b) signed by the testator (the person making-the will);
c) signed by two witnesses.
«Signing» can include making a mark where the testator cannot read or write, but in the case where the testator -cannot read there must be evidence that he or she had been properly informed of the contents of the will. The function of the witnesses is to witness the signature only, not to attest to anything concerned with the contents of the will. So it is not necessary that a witness should read (or even see) the body of the will, nor know that it is a will which is being witnessed.
If a will is not executed in this form, then it will not be validly executed and on the testator's death: his or her property will pass according to the rules for intestacy.
Once a will has been validly executed, it is said to be «ambulatory». That is, it does not have any immediate effect and is only activated by the death of testator. In between the time of the execution of the will and the death of the testator, the will may be revoked (cancelled) or altered by the testator.
Revocation may come about in three ways:
a) by executing a document in the same form as he or she would have to employ to make a valid will. This revoking document is often itself a new will;
b) any will which is made before the testator's marriage is automatically revoked by that marriage. However, divorce does not revoke a will made in favour of the spouse;
c) a will may be revoked «by the burning, tearing or otherwise destroying» by the testator or by some person in his presence and by his direction.
Wills may be altered before or after execution.
A will is a declaration of intention only; the execution of a will does not interfere at all with the general power of an owner of property to dispose of the property during his or her own lifetime.
Text 2
Intestacy
Exercise 1.Read and translate the text:
In the case of a person dying without having made a will the law provides rules for the distribution of property on intestacy. There are four basic positions:
a) Surviving spouse. If a spouse survives and there is no issue of the deceased, whether legitimate or illegitimate, nor any surviving parent or brother or sister, the spouse (except in the case where there was a separation) takes everything.
b) Surviving spouse and issue. When the deceased leaves issue as well as a surviving spouse, the spouse is entitled to the items of household or personal use and a «life interest» (which generally means the income from property to life) in the rest of the estate. The issue divides the rest.
c) Surviving spouse, no issue, but parents, brothers or sisters. The spouse takes items of household of personal use and one half of the residue absolutely; the other half to be divided between the parents or, if there are none, to brothers and sisters of the whole blood.
d) No surviving spouse. In this event the entire state is held for the persons having the relationship to the deceased named in s.47 of the Administration of Estates Act 1925. If there are issues, the estate is shared equally amongst them according to how many children there were. In the absence of issue, parents take all, and in the absence of parents, the property is divided between the closest .surviving relatives. These people are in order of priority:
1) brothers and sisters of the whole blood (two common parents);
2) brothers and sisters of the half blood (one common parent);
3) grandparents;
4) uncles and aunts by blood.
Failing a will and any such people fulfilling any of the conditions in a) to d) the estate is called bona vacantia and the Crown takes the property.
«Partial intestacy» is where the will fails to dispose of all the property of the deceased, or where one of the beneficiaries dies before the testator or declines to take his or her legacy. In this event intestacy rules govern the disposal of that property in respect of which the deceased was intestate.
Special considerations apply to the matrimonial home. If it is «jointly» owned by two people, then on the death of one of them, his or her interest ends automatically, and the survivor becomes absolute owner. But in general the surviving spouse has a right to have his or her statutory legacy put towards the purchase outright of the matrimonial home.
Text 3