Succession nutshell

Question 1

What is succession law is about?

Answer 1

It regulates the transfer of property both personal and real property on their death.

Question 2

What is a will?

Answer 2

A will is a document that is made by the deceased directing the distribution of property in a particular way after their death.

Question 3

if some one had made a valid will..

Answer 3

they are regarded as dying testate. The property is usually divided then according to the terms of the will.. with perhaps some statutory modifications….

for example if someone does not leave their property to their family in their will, leaving their spouse destitute and their children invoking rights conferred in succession act 1965… the statutory provisions will override the will…

Question 4

if a person dies and they did not make a valid will…

Answer 4

their property is dived according to the rules of intestate succession. the rules are available in succession act 1965

Question 5

What is a will?

Answer 5

it is a disposition executed by a person outlining the way in which they would like their property distributed on their death.. the person making the will is known as a testator (male) or testatrix (female)..

Question 6

there is a risk of forged wills..

Answer 6

so that is the reason they made all these formalities.. if does not satisfy these requirements, they cannot be enforced and the result is that the deceased dies intestate (without a valid will) and the rules on intestacy have to be applied..

Question 7

requirements for a valid will…

Answer 7

capacity: under s 77.. of the succession act 1965… the testator the person making the will must be of sound disposing mind, and of age 18 years or married..

Question 8

the test for being of sound disposing mind is set out in

Answer 8

Cockburn C.J. in Banks v Goodfellow 1870..

it is stated that:

it is essential to the excerice of such power that a testor shall understand the nature of the act and its effects: shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevert the excersise of his natural faculties-that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind has been sound, would not have been made..

Question 9

Odonnell v odonnell

Answer 9

HC.. 1999….
involved a challenge to a will due to a lack of capacity.. the testor in odonnell had been a paranoid schizophrenic for many years..

however, Kelly J. accepted medical evidence to the effect that his condition was both controllable and controlled by medication..

even though the deceased was eccentric it did not mean that he was not able to make a will…

the remarks he made to his solicitor at the time of the signing displayed considerable insight and sensible….

the presumption of sound disposing mind has not been rebutted….

Kelly J.. quoted from the high court judgement of Mc Cracken J. in Blackall v Blackall, unreported, high court, McCracken 1996, as follows:

the onus of proving that the formal validity of a will is undoubtedly on the person who propounds the will, but where there is a challenge to a will based on the estate of knowledge or state of health of the testator, the onus is on the person who challenges the will…

Question 10

Kelly J.. quoted from the high court judgement of Mc Cracken J. in Blackall v Blackall, unreported, high court, McCracken 1996, as follows:

Answer 10

the onus of proving that the formal validity of a will is undoubtedly on the person who propounds the will, but where there is a challenge to a will based on the estate of knowledge or state of health of the testator, the onus is on the person who challenges the will…

Question 11

Leaser v Earls 2016..

Answer 11

Judge Hogan.. stated that.. where a testor had been shown to have been suffering from a severe form of physical illness which affected his mental powers when he executed the will…
the presumption of a sound disposing mind had been rebutted, necessitating medical evidence to establish testamentary capacity..

Question 12

Scally V Rhatigan 2011

Answer 12

Judge Laffoy reffered with approval to the judgement of judge Briggs i in Re Key 2010.. where he stated.. the burden of proof in relation to testamnory capacity is subject to the following rules:

1. while the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears natural on its face, then the court will presume capacity..
2. in such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
3. if real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless….

Laffoy Judge, was satisfied that despite his severe physical disablity and the cogintive limittaions, the testor did have testamentary capacity whne he exceuted his will.. she further stated that..

Question 13

Scally V Rhatigan 2011

Answer 13

Judge Laffoy reffered with approval to the judgement of judge Briggs i in Re Key 2010.. where he stated.. the burden of proof in relation to testamnory capacity is subject to the following rules:

1. while the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears natural on its face, then the court will presume capacity..
2. in such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
3. if real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless….

Laffoy Judge was satisfied that despite his severe physical disability and the cognitive limitations, the testator did have testamentary capacity when he executed his will.. she further stated that..

it is a question of fact, pg 137

Question 14

banks

Question 15

above deals

Question 16

Formal requirements…..

Answer 16

1. writing:

1965 act mirrors previous legislation that a will be in writing signed at the bottom by the testator, and that the signature be made or acknowledged in the presence of two witnesses both present at the same time, who sign to verify this.

A will made by the tape recorder, or video tape is not valid because it is not in writing, even though it is recorded on a permanent record.

Question 17

The will must be signed by the testator or by someone directed by him….

Question 18

more on signing

Answer 18

Sometimes the testator may not sign his real name but may use a nickname or family name by which he is generally known e.g your loving mother….

as occurred in B. Cook 1960, this is too permissible.

1965 act provides that the testator may direct someone else to sign the will on his behalf e.g. if he is too weak to sign. it has been stated in b.Mcloughlin 1936…..it is acceptable for the person so directed to sign not in the testors’ name but in his own name….

if the person directed signs the tesators; name, it is uncertain whether the will is invalid or not. the direction to the signing person by the testator must be made in the presence of witnesses.

Answer 19

sometimes the testator has to be aided to write his signature by someone else. eg. a nurse’s he;p may be needed to aid him in moving the pen..

in Fulton v Kee 1961, it was held that the assisted mark counted as the signature of the testator, provided that he made an independent physical contribution to the making of the mark…

even if he did not make an independent physical contribution to the making of the mark. it was arguable that the signature was valid on the grounds that he impliedly directed the nurse to sign for him in the event that he was unable to do so..

The judicial interepratation of the signature requirment has been quite flexible. The reason for this is that a further rule exists to safeguard the testator..

The witnessing requirements require that the testator either make or acknowledge the signature as his in the presence of two witnesses. Thus, an illegible mark may constitute a signature, but it will not ground a valid will unless made in front of witnesses..