Capacity to
Inherit
Foreword
It is quite obvious that even after
death someone would still not be satisfied with their inheritance.
And it is not surprising that family disagreements have and still
will reach levels where even the best drawn Wills may stand little
chance and could end in court if need be. Just like in Trust
settlements, the reader / client would be surprised how many law
firms offer assistance when it comes to attacking Wills.
Will speaks from death
A Will speaks from death although
contrary intention may be presumed form the use of certain words
such as "my", "now" and "at present" relating to
ownership of household and personal effects. A contrary intention
would have to be proved e.g. John's wife would refer to his wife at
the date of making the Will since she was the first person to fulfil
that condition.
The "armchair principle" is will
come into question if words used are not apt to fit the surroundings
circumstances. "Try to place yourself, so to speak, in (the
testators) armchair and consider the circumstances by which he was
surrounded when he made his Will to assist you in arriving at his
intention"
The reader / client should be
informed that there are so many cases where Wills needed to be
presented by the court in order to clarity matters by way of
interpretation.
Attacking Wills
Only a beneficiary can institute an
action contesting the validity of the Will. An executor cannot
attack the Will since he has sworn an oath to "execute the said
Will and well and faithfully discharge the duties of the office of
Executor".
Co-heirs may bring an action even if
a principal heir fails or is not minded to do so.
An heir who is also a beneficiary
under the Will and who wishes to claim his legitime is not able to
receive any benefit given to him in the Will.
Where a life interest is given e.g.
to the widow and she claims her legitime the life interest must be
deemed to be out of the way as though she had died immediately after
the testator and the gift over to the remaindermen vests with
retrospective effect from the date of death of the testator.
Powers of Appointment
A power of appointment is a power
given, usually in a Will, to appoint assets in favour of someone
else at a later date. A special power of appointments is limited to
a certain class of beneficiaries such as grandchildren.
The most common examples id to found
in old family will Trust. A father might have given life interest
funds to his children for them to receive the income during their
lifetimes with a power to appoint as remaindermen one or more of
their own children to receive the capital of the trust fund on their
death. It is submitted that the reason for this was traditionally to
allow children to exert long-term control over the behaviour of
grandchildren. For instance, when the testator's daughter eventually
becomes elderly she would be able to wield her power of appointment
as a weapon to prevent her own children from displeasing her as
otherwise they would be disinherited from the family trust.
Advantages and Disadvantages
A personal executor has personal
knowledge and interest in doing the job properly and will not charge
for his services. But if he has a vested interest, does not
recognise areas of difficulties or is incompetent or otherwise
unable to cope then such an appointment is false economy.
Professional executors are qualified, experienced and have expert
knowledge. They are also impartial in cases of family conflicts or
disputes where a firm or company is concerned there is guaranteed
continuity and accessibility for beneficiaries, security and
professional negligence insurance against fraud or mistakes.
Professional fees may appear high but are probably good value
compared with the cost in legal advice and litigation costs if
things do go wrong.
Sometimes personal executors are
given a legacy for their services. Often it is a nominal amount and
occasionally it can be quite substantial. But large executors'
legacies would only be made in gratitude for professional services
rendered over a large number of years and rarely occurs in practice.
Intermeddling
This is defined as occurring if
"any person takes possession of and in any way administers any part
of the personal estate without obtaining a Grant of Probate or
Administration". An example would be if the principal heir (or
any one) used his "right" to take possession of the estate to sell
the deceased's jewellery, furniture and motorcar before the executor
appointed in the will was able to apply for a Grant of Probate. He
would be guilty of the offence of intermeddling.
Although intermeddling might be a
relatively harmless error of judgement, in severe cases it could
amount to outright theft. No person shall be liable to such fine or
imprisonment. "by reason only of the fact that he has made
arrangements for disposing of the body of the deceased person in nay
manner authorised by law or custom for from placing in safe custody
or otherwise preserving the personal estate and effects of the
deceased".
Foreign Jurisdictions
A number of jurisdictions or
institutions within foreign jurisdictions may not insist on a Grant
being extracted where the assets are but instead be content to
accept a Grant for registration purposes, subject to the
jurisdiction in question.
In particular, unit trust holdings in Europe, especially those in
Luxembourg will usually accept a Grant extracted in the country of
domicile as sufficient authority to deal with the realisation of the
asset.
Other offshore jurisdictions, such
as the Cayman Islands, may be willing to operate a kind or simple
"resealing" procedure to assist in speedy realisation of assets.
They may even do this for obscure foreign domicile jurisdictions.
For most Common Law jurisdictions
which most practitioners will be concerned with it is a matter of
appointing lawyers in that country to obtain a Grant of Probate in
much the same way as the English system. Such jurisdictions include
the States of the Untied States of America, the provinces of Canada
and the states of Australia. Also African countries such as South
Africa and Zimbabwe and Asian countries such as Hong Kong,
Singapore, India, and Sri Lanka have a Probate system similar to the
English model, as may be expected from having a colonial background.
Civil Law jurisdictions such
as France, Spain and Italy are quite different from the Common Law
concept of law. France does not share the Probate concept, which
derived from English Common Law procedures. In France, there is no
concept of an executor or trustee. Nobody is specifically entrusted
with the administration of an estate to collect in assets, pay debts
and expenses and to distribute to beneficiaries. Instead the assets
of the estate devolve on the beneficiaries by operation of law.
Reserved portions are due to spouses and children. It is usual for a
French domiciliary to draw up a Holograph Will "a Will
entirely in the handwriting of the testator. No witnesses are
necessary. The Will most be wholly written, dated and signed by the
testator (i.e. rather than anyone else"), which is lodged
with a Notraire who is responsible for publishing it on death and
giving title to the heirs.
