Chapter 1 - Wills & Succession - The Basics Flashcards
WILLS & SUCCESSION - THE BASICS
Overview
1) What is a will
2) Relevant Statutory Provisions
3) Types of will
4) Benefits of having will
5) What can be disposed of by a will
6) What cannot be disposed of by a will
WHAT IS A WILL
definition
1) Simpler words:
- documents setting-out how property, money etc;
- to be distributed upon death of a person
2) S.2(1) WA:
- A declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death.
- Includes a testament, a codicil (testamentary doc to modify will) and appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of guardianship, custody and tuition of any child.
WHAT IS A WILL
contents of a will
- basics, i.e. name & address
- attestation clause;
- residuary clause;
- revocation clause.
RELEVANT STATUTORY PROVISIONS
Testator
3
S.3 WA
- testator of a sound mind may devise all of his property to whoever he wants.
RELEVANT STATUTORY PROVISIONS
Executor
3 PAA, 11 WA
1) Appointment of executor - S.3 PAA
- Probate may be granted to an executor appointed by the testator in his will
- Appointment of executor may be expressed or implied.
2) Gift to executor - S.11 WA
- A valid gift.
RELEVANT STATUTORY PROVISIONS
Will
4, 5, 12
1) Wills by minor - S.4 WA
- wills by minor is void.
2) mode of execution - S.5 WA
- signed at foot;
- acknowledged by executor as his sign in the presence of two or more witnesses;
- witness shall subscribe the will in the presence of the testator, but no attestation is necessary.
3) effect of marriage on will - S.12 WA
- marriage will automatically revoke previous will;
- except will made in contemplation of marriage.
RELEVANT STATUTORY PROVISIONS
Witnesses
8, 9
1) Subsequent incompetency of a witness - S.8 WA
- does not affect the will;
- cannot be a ground to invalidate the will.
2) Gift to witness - S.9 WA
- Invalid gift & will be void.
TYPES OF WILL
Overview
1) Joint will
2) Conditional will
3) Privileged will
4) Mutual will
TYPES OF WILL
Joint will
One will;
executed by two or more persons;
can be mutual or separate wills
TYPES OF WILL
Conditional will
Will effective only if conditions are fulfilled
TYPES OF WILL
Privileged will
Applicable to certain testators, i.e. seamen, soldiers
TYPES OF WILL
Mutual will
Two wills by two testators who;
In agreement of certain conditions.
TYPES OF WILL
Mutual will - main case
Hiroto Watanabe v Law Yen Yen:
- revocation of mutual wills without consent of the other gives rise to an action for breach of contract;
- on the death of the first person to die, a trust arises in favour of the beneficiaries.
- the assets in the mutual wills are floating trust which crystallises upon death.
- if the survivor revokes his will, action for breach of trust may be taken against him.
BENEFITS OF HAVING WILL
● You can leave assets to your intended beneficiaries
● You can choose your executor
● You can choose a guardian for your children and provide for them
● You can create a testamentary trust in your will
● You can revoke your will anytime if it no longer represents your
interests
WHAT CAN BE DISPOSED OF BY A WILL
S.3 WA
- Property or an interest in the property belonging to the testator or to be received by the testator:
➢ Personal / Movable property
➢ Real / Immovable property
➢ Shareholding in a company
➢ Partnership interest
➢ Interest given under the will of another individual
(provided that the gift has not lapsed)
