Wills Definitions Flashcards
(75 cards)
0
Q
What is the Act
A
Wills Act 2007
1
Q
Will
A
A written statement made by a person detailing how they would like their estate disposed of after their death
2
Q
Before 2007
A
Section 40 sets out provisions for wills before 1/11/2007
3
Q
Another word for will
A
Testament
4
Q
What is not a will
A
It is not a contract
It is not a gift
It does not restrict the right of the Will maker to do what he wants with his assets whilst alive
5
Q
Beneficiaries
A
Those named in the will as intended recipients of the will makers assets on death.
They have no rights until the death of the will maker.
“Speak” from will makers death
6
Q
Operation suspended until death and freely revocable
A
Ambulatory
7
Q
Informal will
A
Not made in writing
8
Q
S8(1) in writing
A
Typed printed written
Signature of witness 2 and see the will maker sign
9
Q
Will Written by hand
A
Holograph
10
Q
Previously where should a will be signed
A
At foot
11
Q
Now where should it be signed
A
Anywhere but good practice at foot and initial at end of each page
S11 doesn’t specify
12
Q
What does s14 do
A
A court may declare a will valid if it is sure that it expresses the intentions of the willmaker
13
Q
Clauses in a will
A
Revocation clause Appointment clause of executors/trustees Bequests, legacies, devices Residuary clause Signature of willmaker Signature of Witness (2)
14
Q
Bequest
A
Gift of movable goods
15
Q
Gift of Real property
A
Devise : land and things perma toy affixed to the land
Beneficiary is devisee
16
Q
Chattel real
A
leasehold property
Bequeath a lease hold interest
In admin act 1969leaseholdnow included as real
17
Q
Bequeath of money
A
Legacy
Pecuniary
18
Q
Residuary clause
A
The balance that is not already bequeathed or devised.
If no residiary clause then will maker will have died intestate.
His clause Provides against intestacy or partial intestacy
19
Q
Testimonium
A
In witness thereof I have made my last will and testament DATED this …….,,,
20
Q
Attestation clause
A
For the 2 witnesses
Signed by the willmaker jwm as for his last will and testament in the PRESENCE OF US BOTH AT THE SAME TiMe……
21
Q
Additional bits to a will
A
Codicil
Same witnessing procedure
22
Q
Conditional wills
A
Essential to all wills that it is conditional on not being revoked.
But also may be conditional on event taking place.
Ie: dying before age 50
Difficult make it clear
23
Q
Who can make a will
A
18 years old
Less than 18 if married or civil union,de facto
Less than 18 if satisfy the family court they understand the effect of the testamentary action
Less than 18 if seafarer or defense force
24
What are the common law a principles of who can make a will
Those with testamentary capacity /sound mind
Does not mean you can't be eccentric or be perfectly balanced
Means a disposing mind
Understand the meaning of the act, the amount and nature of the disposal, recall the persons who they consider to have 'claims on their bounty'
Doesn't mean exclusion of those owed a Moral obligation means that they were incapable
25
Other points re testamentary capacity
At the time the will was executed
May have lucid and non lucid periods
Testamentary Capacity to part of the will- part may be invalid. A delusion I one area
At time of execution, know and approve at time not a mere glance
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Who may take
In general anyone can be a beneficiary. Don't need to be in existence when will made, or even at death
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Rule of perpetuitues
Common eg
A nominated person remaining life plus 21 years
- benes born within this period to qualify
28
Two main exceptions to general rule
1. A person may not profit from their own criminal act.
The Succession (Homicide) Act 2007
Prevents the killer from benefitting from homoocide from the victims estate (intentionally or recklessly)
Includes wives of the killer
2.those that have witnessed the signing of the will (or their spouse, civil union partner, de facto partner) unless 2 other witnesses. Just invalidates the gift. Goes to residiary
29
Gift to solicitor
Get another lawyer for separate advice
30
What happens if the been dies before the willmaker
The gift lapses usually unless left to a child who has a child Status of Children Act 1969
Will work unless contrary to intention of Will maker
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Joint will
Incorporates the wills of two people, executed in normal way. The dispositions are treated as two separate wills
32
Mutual wills
Greater significance that joint wills
Corresponding wills leaving their property to each other. Usually husband and wife.
Pursuant to a Contract between them that they will not change their wills.
Doesn't prevent them changing the will but then the contract would be breached and the revoking party would be liable to an actions for damages.
33
Section 30
Provides that if one person does not keep the promise then the other person can claim any of the benefit that the estate does not provide which was agreed to be made
34
Informal wills
Military or seagoing persons
Eg postcard deemed to be a valid will, pow
One year validity
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A will made completely orally before witnesses
Nuncapative will
One year validity
Witness may benefit
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First Condition of a valid will other than formalities of s11
Animo testandi - intention of disposing of the will makers property after their death
Intention that it should not operate until death and effective at death. Freely revocable until death.
May be a inter vivos gift
37
Second condition for a valid will other than formalities of s11
Free and voluntary act.
| Not the result of coercion, undue influence or fraud
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Influence In general law v influence with wills
Generally dr patient relationship, parent and child are special relationships and presumed to have undue influence.
With wills the special relationship is why there may be a bequest to a special relationship person
39
Persuasion
Can persuade or induce but will maker must have a free mind, free judgement and free power.
If the inducement etc leads to not having free judgement then it is coercion or undue influence.
Led but not driven.
40
Who must prove the fraud or undue influence
The person alleging if the will appears rational and properly executed
41
Three laws that can alter the intentions of the willmaker
Property (Relations) Act 1976
The Family Protection Act 1955
The Law Reform (Testamentary Promises) Act 1949
42
(Testamentary Promises) Act 1949
Prior to this act unless there was a contract there was little remedy
Applies
1. When a person has served another on the express or implied understanding they will be recompensed in the will but no specific contract can be proved; or
2. Contract can't be enforced because the promised reward is uncertain, or it is land and not written,
43
Testamentary promise act
| Which court
Used to be high ct but now family court too
44
The Family Protection Act 1955
Consolidates the old Willmakers Family maintenance Act 1900
45
FPA 195what does it do
Provide for certain members of the deceased's family if their proper maintenance or support has not been adequately been provided for in the will or in the rules of intestate succession
46
What do the judges consider in this living piece of legislation
The concept of moral duty
| The concept of financial and sentimental well being
47
Correct moral base
Ct of appeal in re Allardice, Allardice v Allardice 1910
Not about being just. No right to recast the will
The concept is one of Breach of Moral Duty NOT limitation of testamentary power
48
Little v Angus 1981
| Cooke J
Is there a breach of moral duty as judged by the standards of a wise and just testator
What is the remedy to a breach
49
Support wider than maintenance
Sustaining and providing comfort not just financial
| Recognition and belonging
50
Meaning of de facto s2
```
Checklist
18 + years old
Live as couple
Not married
S2 PRA 1976
```
51
Live as couple tests
Duration relationship
Nature and extend of common residence
Sexual relationship
Degree of financial dependence or interdependence and any support arrangements
Ownership and useand acquisition of property
Degree of commitment to a shares life
Performance of house hold duties
Reputaional and public aspects of relationship
52
Short duration with FPA
| Can an order be made under FPA?
No unless a child or de facto paneer made substantial contribution and it would lead to serious injustice.
Less than 3 yrs
Or 3 years or longer if court thinks just
2e PRAmendment Act 2011
53
Who can claim under FPA?
Spouse, cv union ptner de facto ptner
Children, adopted, de facto children, step children,ex nuptial children
Grandchildren including adopted etc as above
Parents if maintained by the deceased before the death and no spouse, ptner,child to claim
54
What factore taken into account when deciding a claim?
Provision in the will or share in intestacy
Wishes of deceased and reasons
Age,health, earning power and financial position of claimant
Style of living claimant accustomed to by deceased
Other sources of maintenance of claimant
Size of the estate
Character and conduct of claimant
Assistance by claimant in building the estate
Whether strangers will be those effected
Whether the parties affected by an award will consent
55
Changes to wills which section
| What done
S15 wills act 2007
In writing on the will signed and witnessed on the paper next to or beside the change
Or change on the will and witnessed
Words obliterated
High ct declares valid
Can be mad informally by seafaring and military persons
56
Revocation methods
1. Total revocation - marrying, civil union
No legislation deals with de facto
Unless in contemplation of marriage and expressed as such or circumstances shows that it was in contemplation. It will be revoked if marriage does not take place
57
Revocation
2. Partial methods
Dissolution of marriage or civil union will mean the provisions relating to that personal will be null and void.
Appointing them executor or disposing property to them.
Will read as if spouse or partner died immediately before the Will maker. Without pred the FPA claim
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Revocation by voluntary act of willmaker
| What do they need
Require testamentary capacity at revocation too
59
How to revoke voluntarily?
```
1 make a new will or codicil
2.writing a document making it clear the intention to revocate. Must be executed and attested as if a will
3 destruction. Intentionally, partially
4 animo revocandi
5
```
60
Conditional revocation
Dependant relative revocation
If a condition not fulfilled the revocation fails
Revocation may be Dependant on a new will with willmaker not intending to revoke unless the new will made
61
Revival of a revoked will
| How dates of revival
Not by stating their intention even if in writing
Must re execute with s11 formalities or with a codicil expressing intention to revive.
Re-execution =date of reduction
Codicil= date of orig will
62
PRA 1976
Codified regime for division of property
Why, assumptions?
What is the election?
Equal sharing based on what would happen if both alive and split.
Equal sharing plus description to make redress due to economic disparities
Option A make application under PRA 1976
Option B not make a claim under PRA but take under the will or intestacy
63
Time limits
| What are they?
Small estate no land value of personal property not more than $15000. Within 6 months of date of death. Can be administered without grant of administration.
64
Larger estates time limit
No later than 6 months after grant of administration
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Extentions
| What circumstances?
On application to court only when final distribution has not occurred.
De facto - no later than 3 years after relationship ended
Married or cunion- within 12 months of dissolution of marriage
66
How do you make an election?
Choose option a
Complete or sign the written notice in prescribed form. Contains a solicitors cert to say that they have been advised of the effect and implications.
Form and cert must be lodged with the administrators of the estate. Or if probate or grant of admin granted in the high tc registry
67
Notification of choosing option a PRA
| Who
Sh company directors
Final managers of super fund
Any bene under a life insurance policy other than applicant
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No choice made what happens?
| Can choice be revoked?
Deemed to have chosen b to take under will or intestacy.
| No can't be revoked but Ct may set aside
69
Court may set choice a or b of PRA aside.
| What circ?
Discretion of Ct.
Option not free will
Spouse did not fully understand effect and implications.
New relevant information after choice made
Since the election someone else has made a claim under testamentary promised act 1949 or FPA 1955
Plus ct to be satisfied it would be unjust to enforce but consider the timeframe, circumstances,other relevant matters
70
What are the time framers for distribution?
Small estates: 6 months after death
Other estates: 6 months after grant of admin
Or
ptner chooses a or b
Disposal of any claim underestimate PRA or FPA or testamentary promise claim
Distribution is restricted until proceedings completed or if spouse agrees or Ct says
71
What are the special provisions for surviving spouse if ptner
PRA claims have priority over benes under will, any order under FPA 1955, law reform testamentary promises act 1949. And costs payable not excepting estate admin and funeral costs.
All prop owned by deceased assumed to be relationship property. Burden of proof on rebutter.
72
Marriage of sht duration.
| De facto of sht duration?
Marriage Assumed tobe one of long duration unless unjust.
De facto - can not make a division under PRA 1976 unless a child, substantial contribution and necessary to avoid injustice.
Otherwise according to contribution of each de facto ptner
73
Priority if claims.
1. Marriage and de fact successive?
2. same time
Establish contribution of each relationship
1. Divided in accordance with chronological order of relationship
2. As far as possible attributable to the relationship.
If not possible then contribution to each partner
74
Successive relationship
During the marriage but after the live tog as husband and wife
