Wills and Inheritance Unit 24

Preview Definitions: inheritance, will Definitions: inheritance, will Conditions for a valid will: form, substance Conditions for a valid will: form, substance Testamentary capacity Testamentary capacity Beneficiaries Beneficiaries Estate, assets Estate, assets Challenging of a will Challenging of a will Intestacy Intestacy Legal terms Legal terms

Inheritance Law Inheritance Law (sometimes called Wills and Probate) is concerned with the distribution of a person’s property following their death Inheritance Law (sometimes called Wills and Probate) is concerned with the distribution of a person’s property following their death This may occur either in accordance with the provisions of a will, or under applicable rules relating to intestacy (when a person dies without a will) This may occur either in accordance with the provisions of a will, or under applicable rules relating to intestacy (when a person dies without a will)

Inheritance 1. The devolution of property on the death of its owner, either according to the provisions of his will or under the rules relating to intestacy 1. The devolution of property on the death of its owner, either according to the provisions of his will or under the rules relating to intestacy

Will A document by which a person directs what should happen to their property after their death A document by which a person directs what should happen to their property after their death

Will A will must be made: A will must be made: 1) in writing, 1) in writing, 2) signed by the testator (the person making the will), 2) signed by the testator (the person making the will), 3) witnessed by at least two witnesses 3) witnessed by at least two witnesses

Validity of a will The testator must: The testator must: 1. have testamentary capacity 1. have testamentary capacity 2. make the will of his own free wishes without any undue influence (animus testandi) 2. make the will of his own free wishes without any undue influence (animus testandi)

Testamentary capacity The ability to make a legally valid will The ability to make a legally valid will Persons under 18 years of age and mental patients do not have testamentary capacity Persons under 18 years of age and mental patients do not have testamentary capacity

Testamentary capacity (The Banks v Goodfellow Test, 1870) The testator must: The testator must: 1. Understand the nature of the document 1. Understand the nature of the document 2. The property of which he is disposing 2. The property of which he is disposing 3. The persons who have a natural claim to provision from his estate 3. The persons who have a natural claim to provision from his estate 4. The manner in which he provides for his estate to be distributed 4. The manner in which he provides for his estate to be distributed

Undue influence Influence that prevents someone from exercising an independent judgement with respect to any transaction Influence that prevents someone from exercising an independent judgement with respect to any transaction

Undue influence (Hall v Hall, 1868) „Pressure of whatever character, when acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made. „Pressure of whatever character, when acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made.

Undue influence Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgement, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgement, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened.

Undue influence In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s” In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s”

Undue influence A will may be held invalid if it is shown that the testator made it under undue influence A will may be held invalid if it is shown that the testator made it under undue influence It must be shown that unfair advantage has been taken of another person It must be shown that unfair advantage has been taken of another person

Beneficiaries Persons who inherit property under a will Persons who inherit property under a will The property of a deceased person is known as their estate The property of a deceased person is known as their estate

Estate The aggregate of all the property to which a person is beneficially entitled. The aggregate of all the property to which a person is beneficially entitled. It covers not only tangible property, but also debts, and any rights capable of being reduced to a monetary value It covers not only tangible property, but also debts, and any rights capable of being reduced to a monetary value

Revocation and alteration of wills A will can be revoked or altered in the following ways: A will can be revoked or altered in the following ways: 1. By making a new will that makes it clear that the previous will(s) are revoked 1. By making a new will that makes it clear that the previous will(s) are revoked 2. By destruction of the previous will 2. By destruction of the previous will 3. By marriage or divorce 3. By marriage or divorce 4. By amendment (an attached codicil) 4. By amendment (an attached codicil)

Challenging of a will A will may be challenged on the grounds that: A will may be challenged on the grounds that: it was not properly executed it was not properly executed the testator lacked testamentary capacity the testator lacked testamentary capacity it has been revoked it has been revoked it was fraudulent it was fraudulent undue influence undue influence

Intestacy The state in which a person dies without having made a will disposing of all his property The state in which a person dies without having made a will disposing of all his property To die intestate To die intestate

Intestacy In that case, the person’s property is distributed in accordance with the intestacy rules In that case, the person’s property is distributed in accordance with the intestacy rules The order of priority reflects the importance accorded to familial relationships: the surviving spouse is given the larger share of the estate The order of priority reflects the importance accorded to familial relationships: the surviving spouse is given the larger share of the estate

Probate The official document which confirms that the will is valid and states who the executors are The official document which confirms that the will is valid and states who the executors are Generally, the term probate is used to refer to the various laws and courts which deal with wills, intestacy, inheritance and disputes over estates Generally, the term probate is used to refer to the various laws and courts which deal with wills, intestacy, inheritance and disputes over estates

Freedom of disposition vs. forced heirship Freedom of disposition – common law countries Freedom of disposition – common law countries Forced heir(ship) – civil law countries – a person whom the testator or donor cannot disinherit because the law reserves part of the estate for that person Forced heir(ship) – civil law countries – a person whom the testator or donor cannot disinherit because the law reserves part of the estate for that person

Points to remember Definition of will Definition of will Conditions for a valid will Conditions for a valid will Testamentary capacity Testamentary capacity

Legal terms Testator Testator Oporučitelj Oporučitelj Executor Executor Izvršitelj oporuke Izvršitelj oporuke Beneficiary Beneficiary Oporučni nasljednik Oporučni nasljednik Heir Heir Zakonski nasljednik Zakonski nasljednik

Legal terms Legator Legator oporučitelj oporučitelj Legatee Legatee Oporučni nasljednik Oporučni nasljednik Pecuniary legatee Pecuniary legatee Nasljednik koji nasljeđuje gotovinu Nasljednik koji nasljeđuje gotovinu

Legal terms Testamentary capacity Testamentary capacity Oporučna sposobnost Oporučna sposobnost Testamentary disposition Testamentary disposition Oporučno raspolaganje Oporučno raspolaganje

Legal terms Estate Estate Ostavinska masa, imovina umrle osobe, ostavina Ostavinska masa, imovina umrle osobe, ostavina Bequest Bequest A gift by will of property other than land A gift by will of property other than land

Legal terms Assets Assets All real and personal property that forms part of the deceased’s estate and is available for the payment of the deceased’s debts; property which can be turned into cash All real and personal property that forms part of the deceased’s estate and is available for the payment of the deceased’s debts; property which can be turned into cash Imovina; ostavina; aktiva Imovina; ostavina; aktiva

Legal terms Legacy Legacy A gift of personal property by will; oporučni dar A gift of personal property by will; oporučni dar Pecuniary legacy Pecuniary legacy Novčano nasljedstvo Novčano nasljedstvo Reversion Reversion Vraćanje (prava, posjeda); prijenos ostavine Vraćanje (prava, posjeda); prijenos ostavine

Legal terms Probate Probate Ovjerena oporuka, sudska ovjera oporuke, ovjereni prijepis pravovaljane oporuke Ovjerena oporuka, sudska ovjera oporuke, ovjereni prijepis pravovaljane oporuke Probate proceeding Probate proceeding Ostavinski postupak, ostavinska rasprava Ostavinski postupak, ostavinska rasprava

Legal terms Probate action Probate action Ostavinska tužba Ostavinska tužba

Legal terms Execution of will Execution of will Izvršenje oporuke Izvršenje oporuke Revocation of will Revocation of will Opoziv oporuke Opoziv oporuke Revoke a will Revoke a will Opozvati oporuku Opozvati oporuku

Legal terms Intestacy Intestacy Nepostojanje oporuke Nepostojanje oporuke To die intestate To die intestate Umrijeti bez oporuke Umrijeti bez oporuke Intestate heir Intestate heir Zakonski nasljednik Zakonski nasljednik

assets, draft, estate, testament A last will and ___is a legal document that declares how an ___or property will be managed after the writer’s death. Although it is not the most pleasant subject to approach, it is essential for people to ___a will to ensure that their ___are handled in a satisfying way. A last will and ___is a legal document that declares how an ___or property will be managed after the writer’s death. Although it is not the most pleasant subject to approach, it is essential for people to ___a will to ensure that their ___are handled in a satisfying way.

Key A last will and testament is a legal document that declares how an estate or property will be managed after the writer’s death. Although it is not the most pleasant subject to approach, it is essential for people to draft a will to ensure that their assets are handled in a satisfying way. A last will and testament is a legal document that declares how an estate or property will be managed after the writer’s death. Although it is not the most pleasant subject to approach, it is essential for people to draft a will to ensure that their assets are handled in a satisfying way.

Investments, minor, party, property For those with __children, it is crucial to declare how ___or money will be used to provide for these children. For those with ___or accumulated savings, it is important to state the name a responsible ___ who will manage these funds. For those with __children, it is crucial to declare how ___or money will be used to provide for these children. For those with ___or accumulated savings, it is important to state the name a responsible ___ who will manage these funds.

Key For those with minor children, it is crucial to declare how property or money will be used to provide for these children. For those with investments or accumulated savings, it is important to state the name a responsible party who will manage these funds. For those with minor children, it is crucial to declare how property or money will be used to provide for these children. For those with investments or accumulated savings, it is important to state the name a responsible party who will manage these funds.

beneficiaries, donations, debts, executor Generally, a last will and testament should contain the name of an ___, information relating to one’s burial, payment of any___, any charitable___, bequests to ___and the list of the powers of the executor. Generally, a last will and testament should contain the name of an ___, information relating to one’s burial, payment of any___, any charitable___, bequests to ___and the list of the powers of the executor.

Key Generally, a last will and testament should contain the name of an executor, information relating to one’s burial, payment of any debts, any charitable donations, bequests to beneficiaries and the list of the powers of the executor. Generally, a last will and testament should contain the name of an executor, information relating to one’s burial, payment of any debts, any charitable donations, bequests to beneficiaries and the list of the powers of the executor.

revokes, testator, validity, will witnesses Additionally, a will must be typed or printed, signed by the maker, or ___and signed by ___who can attest to the ___ of the document. A __must state that the testator ___any previous wills or amendments to such previous wills. Additionally, a will must be typed or printed, signed by the maker, or ___and signed by ___who can attest to the ___ of the document. A __must state that the testator ___any previous wills or amendments to such previous wills.

Key Additionally, a will must be typed or printed, signed by the maker, or testator, and signed by witnesses who can attest to the validity of the document. A will must state that the testator revokes any previous wills or amendments to such previous wills. Additionally, a will must be typed or printed, signed by the maker, or testator, and signed by witnesses who can attest to the validity of the document. A will must state that the testator revokes any previous wills or amendments to such previous wills.

Capacity, demonstrate, duress, testator The ___must demonstrate that the document was not created under ___or provocation. In other words, the testator must ___that the will was created willingly and freely by an individual with the mental___ to do so. The ___must demonstrate that the document was not created under ___or provocation. In other words, the testator must ___that the will was created willingly and freely by an individual with the mental___ to do so.

Key The testator must demonstrate that the document was not created under duress or provocation. In other words, the testator must demonstrate that the will was created willingly and freely by an individual with the mental capacity to do so. The testator must demonstrate that the document was not created under duress or provocation. In other words, the testator must demonstrate that the will was created willingly and freely by an individual with the mental capacity to do so.

beneficiaries, debts, executing, party, probate The will must name the ___or parties responsible for ___ the document under the supervision of the ___court. The will should name any ___and their entitlements. In addition, the will should explain how any outstanding ___will be paid. The will must name the ___or parties responsible for ___ the document under the supervision of the ___court. The will should name any ___and their entitlements. In addition, the will should explain how any outstanding ___will be paid.

Key The will must name the party or parties responsible for executing the document under the supervision of the probate court. The will should name any beneficiaries and their entitlements. In addition, the will should explain how any outstanding debts will be paid. The will must name the party or parties responsible for executing the document under the supervision of the probate court. The will should name any beneficiaries and their entitlements. In addition, the will should explain how any outstanding debts will be paid.