Mental Capacity in Will Making

Introduction

It is everyone’s desire to always exercise control over their properties both in life and in death. The process of exercising control while a live is easier than doing so after death. It is on this basis that the law allows one to exercise testamentary freedom and decide how to dispose their estate after death through the making of a will. A will therefore is document that expresses the wishes of an individual with regards to the management and disposition of his estate after death. There are a number of rebuttable presumptions about the validity of a will. It is presumed valid unless there is contrary evidence. Section 9 of the Wills Act 1837 outlines what a valid will is. It must be in writing and signed by the testator in the presence of two witnesses who must also sign and attest to the same.

Issues arising

The duties of an executrix

It is imperative once appointed an executor to know the roles since an executor or executrix of an estate is personally liable for any on behalf of the estate of the deceased. An executrix therefore has a duty to; check and understand the will; make arrangements for funeral; apply for the grant of probate; arranging and organizing funds immediately for survivors; prepare a full and detailed list of the testator’s assets and liabilities together with their valuation at thee time when the testator died; arrange for necessary insurance; making necessary advertisement in newspapers for creditors, if any; paying necessary taxes like capital gains and income tax; collect the assets of the deceased; pay for expenses and liability in accordance with the will; pay legacies; distribute the residue or the residuary estate and finally prepare the account of the estate.

Effects of divorce on a will

According to the Wills Act of 1837, the divorce or even dissolution of a marriage or civil partnership has no effect on the will. In fact, such divorce or dissolution cannot revoke a will. The former wife or partner is presumed by law to have died before the testator or otherwise predeceasing him. Therefore, the role of a former partner ceases immediately with the divorce. In this case, Mrs. Gretel Herewini has no role in the administration of the estate of her former husband as such Mrs. Lawrie remains the sole executrix. Continue your exploration of Legal Writing, Ethical Practice, and ADR in Contemporary Legal Landscapes with our related content.

Gifts to trusts

In his will, Mr. Herewini had gifted Mrs. Lawrie £100,000.00 (100,000 thousand pounds) which legacy she wishes to refuse and wants the same to go to Hawk Conservancy Trust. To make such a gift, Mrs. Lawrie needs to get the name of the organization, which is this case is Hawk Conservancy Trust and its registered number just bequeath it the £100,000.00. If she wishes the money to be used in a specific manner, then she can include the purpose in a letter of wishes which is not a public document.

Impact of a codicil on a will

A codicil has the effect of changing or altering a will in so many ways. It can impact the appointment of executors or revoke the entire will. It can as well revoke part of the will and give effect to some new provisions. A codicil can contain additional information that were inadvertently left in the will by the testator during the making of the will. Moreover, just like the will itself, a codicil must comply with the rules regarding the making of a will for it to be valid. The town paper from the notebook attached to the will which is signed and witnessed by two persons dated 4th June 2013 is therefore a codicil. As such, it should be made in conformance with requirements that apply to the making of the will. Mental capacity is very important. Mr. Hereweini is said to have revoked his legacy of £110,000 to Ms Katina Smirnova while intoxicated. To this end, the requirement of the Wills Act 1837 is that a testator must have mental capacity to be able to make a valid will. The same was stated in the case of Bank v Goodfellow (1870). Intoxication interferes with the status of mind and one cannot be mentally capable of making a valid codicil if he or she is intoxicated.

When a beneficiary cannot be found and steps an executrix can take to protect herself in such an eventuality

Tracing Bethan Roy involves a number of steps. First, Mrs. Lawrie needs to make inquiries with the family and consider placing an advertisement in local newspapers in the area of their last known residence in accordance with section 27 of the Trustees Act (1925) Notices. Should this fail, she can distribute the legacy to the remaining beneficiaries subject to indemnity signed by both to the effect that should the lost beneficiary be found, they should be able to compensate them. She can also go for an insurance policy to cover the situation. Lastly, she can apply for a Benjamin Order to court and this order will direct how the executor should distribute the estate. This order can only be given if the executor proves that all efforts have been put to trace the beneficiary unsuccessfully.

The effect of misspelt name in a will

Misspelling the name of the grandson does not disinherit the grandson of his share if it is apparent that the testator intended so. As long as the it can be established that he is the grandson, an error in spelling the name cannot disinherit him.

The effect of torn parts of a will

A will can be revoked by destruction by the testator. If a will is destroyed while in the custody of the testator, then it would be safe to conclude that the testator did not wish to have the will take effect. Destruction can be partial or whole. However, destruction may not invalidate a will if the same will complied with the requirements of its making. In the instant case, the substantive part of the will is not destroyed. As such, the will can still be executed.

Conclusion

The process of giving effect to a will lies solely on the executor. He or she has the mandate to execute the will in accordance with the wishes of the testator. As such, an executor has a mandate to read and understand the will before he or she can embark on the execution. Reading and understanding is very important since the executor is personally liable for any error occasioned by himself. Issues such as codicil, duties, errors, and tracing of a beneficiary should be considered preliminary and dealt with properly as such.

Who is responsible for administering the estate of James Pope?

Testamentary freedom is an idea that resonates well with and within the contemporary society. The basis for testamentary freedom is the desire, the wish and the urge to have control over one’s property or estate even in death. In doing so, it should be noted that an individual will exert control over his estate long after they shall have died. To exercise this vital control, the laws are very cautious when it comes to interfering with one’s choices in writing a will. Put differently, no court of law would interfere with an individual’s wishes expressed in a will unless there is an apparent error on the face of the will neglecting right beneficiaries.

A will, loosely, is a document expressing one’s wishes with regards to how he wishes his or her estate to be administered upon his or her demise. Section 9 of the Wills Act 1837 provides that a will must be in writing; must be attested to by the testator or on his behalf in the presence of at least two witnesses who also must sign in the presence of the Testator; must be signed by the testator as a show of intention to give effect to the said will. In the instant case, the will executed by James Pope in 1991 is a valid will going by the facts presented. That means that James pope was eighteen(18) years and above, had the intention to make a will, was not under undue influence, duress or fraud, knew of and did approve the contents of the will and lastly, was mentally capable of making the will in accordance with the provisions as derived from the case of Banks v Goodfellow(1870).

The person responsible for administering James Pope Estate

James pope in his will dated 1991 and in exercise of his testamentary freedom, decided to appoint his wife, Josphina Pope, as the executrix of his will. He also foresaw a situation where his wife could predecease him and acting on such a foreseeability, he decided that in the event his wife predeceases him, which eventually is what transpired, then his friend Dipesh Warburton would step up and execute his will. This provision of appointing more than one executor or executrix is valid and by far a process known to law.

An executor is someone appointed expressly by the testator to execute his or will in the event of their demise. In the absence of any controversy, the two persons, Josphina Pope and Dipesh Warburton would therefore the valid executrix and executor of the estate of James pope respectively. But that is not the case in this matter since the executrix has since passed on predeceasing the executor as he had impliedly foreseen by inserting the clause’ in the event she predeceases me’. That leaves the estate of James Pope in the hands of his friend Dipesh Warburton who, unfortunately, is not willing to take up the task of being an executor owing to new responsibilities as a conversation officer, a job he has since embraced. The estate is thus left in dilemma but with a solution.

Once an individual has been appointed an executor or an executrix whichever the case, theirs is limited to 3 major choices; take up the responsibility bestowed upon them (appointment), renounce their position and in the case of two executors, have power reservations and let the other individual execute. If an individual wish to renounce their appointments, then such renunciation must be swift and made within reasonable time to enable the executor appoint another person instead. However, there are no hard rules on the same. Josphina Pope, the subject executrix has seen died. This leaves the estate in the hands of Dipesh Warburton. However, the latter is not willing to take up the responsibility. It is in such a scenario where the court comes in to appoint the administrator of the estate in the absence of any kind of intermeddling by the persons entrusted to administer the estate of one Mr. James Pope.

An application to court to appoint an administrator of an estate is a rule of procedure and is substantively imbedded in the Succession laws. The cost of such an application is borne out of the estate of the deceased. The court in its discretion has the power to appoint anybody to administer the estate and upon successful administration, such an individual has a duty to render the books of accounts to court and report back outlining and detailing how the estate has been administered. This application can only be successful if it is proven that indeed there are no more persons left to execute the will of a testator due to death or other factors such as renunciation. A point to note is that no court would appoint an administrator if there is an executor who has, even in the slightest of ways, intermeddled with the estate of the deceased before taking over the role of an executor officially, that is, grant of probate by the court.

Intermeddling with the estate of the deceased person in any way before the process of execution starts leads to forfeiture of the right to renounce an appointment as an executor. Intermeddling is simply interfering by holding oneself as an executor, collection of assets or even paying debts of the deceased from his or her estate after their death. From the facts of the case, Dipesh Warburton alongside James Pope sister, Janette, went to obtain the death certificate and certified copies and paid an outstanding bill of £52.30 to James’s gardener. The act of going to obtain death certificate and certified copies of the same do not amount to intermeddling since arranging for funeral or moving assets to safety and securing things like food are not to be considered as interference. However, the overt act of paying debts to one of the testator’s creditors is a clear act of intermeddling with the estate of the deceased. An executor has a duty to act in accordance with the will and that is why it is imperative to know the roles attached to executorship since at the end, an executor is answerable to so many persons and institutions.

Having analyzed the fact of the case, two options are available as regards who should administer the estate of James Pope. One, lodging an application to court to appoint an administrator owing to death or renunciation. In the case of renunciation, the executor can only renounce his appointment if he not intermeddled with the estate in any manner. Two, if the testator has intermeddled with the estate, then he or she loses her right to renunciation and as such they remain the executor. In this case, the facts are clear in that Mr. Dipesh Warburton having been entrusted with the estate of James Pope and subsequently intermeddling by paying some debts to the gardener and eventually purporting to renounce his appointment loses such privilege of renunciation. Mr. Dipesh Warburton therefore remains the executor to administer the estate of James Pope.

Distribution of James’s Estate

The will of Mr. James Pope was quite elaborate. It contained gifts in specific and others pecuniary in nature. A lot has happened since the making of the will and the death of the testator. There are a number of beneficiaries named in the will to benefit from gifts and residue of the estate. To start with his Shefali with whom he gifted his Holman Sailing boat. This is a gift since a gift includes personal property and even money. The boat sunk in 2012 meaning that it no longer formed of the estate of the testator at the time of his death and therefore by virtue of the doctrine of ademption, it fails. Ademption is where the property subject of the no longer exists or forms part of the testator’s estate at death.

His daughter Henriette whom he had gifted £200,000 died last year leaving behind two daughters Anne and Helen aged 19 and 15 years respectively. This gift ought to have lapsed by virtue of the doctrine of lapses. This is where a beneficiary predeceases the testator. However, since the daughter left behind two daughters, one of whom has attained the age of majority, then the money gift does not lapse and the same should be shared equally among her daughters. The minor should have a guardian appointed or a trustee to hold the money on her behalf until she attains the age of majority. To the gift of similar amount, £200,000, gifted to his son Andre and who lives in France, the same should be distributed to him to that effect.

To his sister Janette, James gifted her Carrs Silver English Thread Stainless Steel 44-Piece Canteen. This car was loaned 4 years ago before James died. This property here is not subject of ademption doctrine since it was not disposed. It therefore forms part of the testator’s estate and the gift should pass as such. James gifted his niece Arabella Pope his CASE 40 BHP Traction Engine, which he sold in 2006 and bought another vintage Aveling & Porter steamroller. The doctrine of ademption dictates that when a property subject of a gift no longer forms part of the testator’s estate at the time of his death, then the gift fails. There is an exemption however, to the effect that if that property only changes its name and form, then the gift does not adeem. In this case, the car was sold and the proceeds used to buy the steamroller. This clearly shows that the gift not only changed in form but also in substance and as such it adeems. The steamroller will thus form part of the residuary estate.

James Pope also gifted Wisbech Wildlife society; a registered charity £10,000.00. However, the charity ceased to exist two years prior to his death. The gift therefore lapses and the same should form part of the residue. To the reminder of his estate, residue, James gave to his wife Josphina who died in March 2012. Therefore, the whole of James’s residuary estate left to Josphina lapsed. The executor should therefore distribute the residue to surviving beneficiaries equally after making due provision to the adopted son Benedict in accordance with the Inheritance (provisions for the Family) Act 1975 since Mr. James Pope had recognized him as his own and provided for him during his lifetime.

Conclusion

The administration of the estate of a deceased person vests in the executor or executrix. Before taking up the role, it is imperative to know the roles that an one is to play in the process of execution. The underlying rule is that an executor is liable for any wrong committed before and during execution. They are answerable to several persons and institutions would want the books of account and a report as to how the estate was administered. They should therefore avoid issues such as intermeddling as such will deny one the privilege to renounce their appointment as an executor. Equally, a testator should ensure that they leave behind persons who are willing to execute and in the event of them predeceasing him, the testator should appoint another. When it comes to distribution, the executor should do the execution in strict adherence to the testator’s wishes. One must consider the doctrine of lapse and ademption in cases where the same are applicable.

Bibliography

Books/Journals

Bonfield, L., 2016. Devising, dying and dispute: probate litigation in early modern England. Routledge.

Casey, N., 2012. Wills, Probate and Estates. Oxford University Press, USA.

D'Costa, R. ed., 2012. Practice Notes on Executorship and Administration. Routledge.

Jones, N.G., 2010. Wills, trusts and trusting from the Statute of Uses to Lord Nottingham. The Journal of Legal History, 31(3), pp.273-298

Knight, J., 2011. Wills, Probate, and Inheritance Tax for Dummies. John Wiley & Sons.

Peiros, K. and Smyth, C., 2015. Successful succession: Grants of representation and further provision claims. Taxation in Australia, 49(11), p.715.

Sawyer, C. and Spero, M., 2015. Succession, wills and probate. Routledge

Taylor, N. and Grannum, K., 2009. Wills & Probate Records: A Guide for Family Historians. Natl Archives.

Vickery, N., 2016. Bringing a claim to ‘protect’an estate before a grant of administration. Trusts & Trustees, 22(7), pp.822-829.

List of Statutes

Administration of Estates Act 1925

Administration of Estates Act 1971

Inheritance (Provision for Family and Dependants) Act 1975.

Section 27(Trustees Act 1925) Notices

Senior Courts Act 1981

The Wills Act (1837)