Testate Succession and Intestate Succession

ABSTRACT

“Succession to defunct is the most important title in law; for thereby the rights of all persons do necessarily pass once, and frequently oftener, in every generation”.

Succession affects everyone as all property must pass to someone else on death. There are twin regimes in place to regulate the law of succession and are as follows:

1. Testate Succession and (where the individual leaves a will on death)
2. Intestate Succession (where the individual does not leave a will on death)

The difference between Testate and Intestate Succession is as follows:

Testate succession occurs when a person dies and leaves a will. Their estate will be distributed as they bequest in the will however legal rights will still have to be satisfied

Intestate Succession occurs when someone dies without a will and their estate is distributed by the laws of intestacy which are governed by the Succession Act 1964.

The existence of the twin regimes of testate and intestate succession may reflect the wealth of a deceased person – those who have a lot to leave will generally prepare carefully for how it is to pass and to whom (as in the case of Williamson v Williamson) while those with not very much will allow it to pass to their partners and children in general with no actual preference. In the latter case, the rules of intestate succession determine the passing on of assets and the crown have a larger probability of gaining part of the estate as well.

TERMINOLOGY RELATED TO WILLS

Holographic Will: To be valid, a holographic will must be signed by the testator and the will’s material provisions must be in the handwriting of the testator, and such a document will constitute a valid holographic will whether it has been witnessed or not. In addition, the entire will need not be in the testator’s handwriting; statements of testamentary intent in holographic wills may be made either in the testator’s handwriting or as part of a commercially printed form will.

Nuncupative Will: Nuncupative wills are not allowed

Bequest, Legacy, or Devise: a devise is a gift, or real or personal property, in a will and vests at the death of the transferor. The classes of testamentary gifts are as follows:

Specific gifts—transfers of specifically identified property;

General gifts—transfers from general assets that do not give specific property;

Demonstrative gift—a general gift that specifies the fund or property from which the gift is to be made;

General pecuniary gift—a gift of a fixed dollar amount or in an amount determinable by the provision of the instrument giving the gift;

Annuity—a pecuniary gift that is payable periodically;

Residuary gift—a transfer of a gift that remains after satisfaction of all specific and general gifts.

Ademption, Lapses, and Abatement:

Ademption: The recipient of a specific gift has a right to any portion of the specific gift remaining at the time of transfer plus any balance owing or amount due by reason of the sale or transfer of the specific gift by the transferor

Lapses: Gifts to devisees who do not survive the decedent fail. Failed gifts become a portion of the residuary estate. If a residuary gift or future interest is transferred to two or more persons, but the share of one transferee fails from any reason, then that share passes to the other transferee(s) in proportion to their interest in the gift or future interest.

Abatement: The overriding concern in abating gifts is to do so in a manner which will not defeat the transferor’s plan or purpose. No distinction is drawn between real and personal property for purposes of determining priority in abatement. Gifts abate in the following order:

Property not disposed of by the instrument.

• Residuary gifts.
• General gifts not to the transferor’s relatives.
• General gifts to relatives.
• Specific gifts to others than the transferor’s relatives.
• Specific gifts to relatives.

THE LAW RELATING TO TESTATE AND INTESTATE SUCCESSION

Whenever a person dies leaving property, the question will definitely arise as to how his property or estate will be dealt with by those he/she left behind. A person is normally said to have died testate if he left a Will at the time of his/her death and a person is said to have died intestate if such a person died without leaving a Will. When a person dies testate, things are a bit easier since all that his/her Personal Representative (PR) will do is to apply and obtain a grant of Probate which merely validates his Will and allows the Personal Representative/Executors to carry out or effectuate the wishes of the testator e.g. distributing the property according to the wishes of the testator. However, where a person died intestate, his personal representative will apply for Letters of Administration to deal with his estate, which might be a bit complex, hence the imperative to write or make a Will.

Sloppiness in legal drafting or dishonesty on the part of lawyers has sometimes frustrated the wishes of testators and the legitimate expectation of beneficiaries. This is so because if a solicitor either for want of due diligence or inadvertence or dishonesty fails to strictly adhere to the laws relating to Wills or testate succession, the effect could be multi-faceted varying from invalidity of the Will to denying a beneficiary of his entitlements under the Will. Besides, the Law of Intestacy may apply for want of due execution of the Will, which will have the effect of invalidity of an otherwise valid Will. Thus in preparing a Will, solicitors are enjoined to exercise enhanced care and diligence. The ability to draft and analyze the validity and effectiveness of Wills cannot be overemphasized for lawyers. The reasons for the above are not farfetched. Generally speaking, a solicitor is under a duty to ensure that:

• The Will he prepares accurately reflects the client’s instructions,
• The testator has capacity,
• The testator has the necessary intention to make the Will,
• The Will complies with the formalities required by section 9, Wills Act 1837 [1] , and
• The Will is prepared with reasonable speed.

Any breach of duty in this regard will expose the solicitor to a claim for professional negligence.

Where a lawyer receives instructions from a third party like the relative of the testator who purports to act for the client, it is suggested that the lawyer should take steps to confirm the instructions with the client preferably in writing.

Note that if the client intends to make a gift inter vivos or by Will to his lawyer, or to the lawyer’s partner or a member of his staff, or to the families of any of them and the gift is substantial, either in itself, or having regard to the size of the client’s estate, or to the reasonable expectations of prospective beneficiaries, the solicitor must insist his client is independently advised as to that gift and if the client declines, the lawyer must refuse to act for him. The testator must have testamentary capacity, i.e. the capacity to make a Will – The testator must not have been under the age of 18 at the date of the execution of the Will (unless he was able to make a “Privileged Will” as a soldier on actual military service or a seaman at seas).

2.1 Mental Capacity

The testator must have clearly understood three things on the authority of the case. They are:

• The nature of the act and its effect,
• The extent of his property,
• The claims to which he ought to give effect.

Note 1:

The principle is that testamentary capacity must have existed at the date of execution.

Nevertheless, it is trite and settled on the authority of the rule that it will be sufficient to show that:

The testator had the requisite capacity at the date he instructed his lawyer to prepare a Will;

The will was prepared in accordance with those instructions; and

at the time of execution he was able to understand that he was signing a Will for which he had given instructions and that he believed the Will to be in accordance with those instructions.

Note 2:

Inebriety or insanity or insane or irrational delusions do not automatically mean that a testator lacks capacity.

Delusions are only material if they affect the disposition of property in the Will. If the testator lacks mental capacity, the Will is void and that will form a strong ground for anyone to challenge the grant of probate or the validity of the Will.

2.2 Burden of Proof (Onus Probandi)

Generally, the propounder of the Will (i.e. the person seeking to prove it) must normally prove the existence of the necessary capacity. Although in practice, once a duly executed Will appears to be rational on its face, capacity is ordinarily presumed. In that case, it will then be up to those opposing the Will to rebut this presumption by proof of incapacity.

It should be noted that if the testator was generally lacking capacity (e.g. a history of mental illness) it is presumed that this condition continued at the time of execution. The propounder then has the burden of proof that the testator executed the Will during a lucid interval. Proof of capacity can be difficult where evidence of capacity is sought sometime after the execution. In the case of an aged testator or one who is or has been seriously ill it is good practice to arrange for a declaration (medical report) from the medical practitioner in charge of the testator’s case that at the time of execution the testator was lucid. Ideally the doctor should act as one of the witnesses though medical staff are usually unwilling to do so. For example: we have one whose mother died leaving a Will that seemed to have given everything to one of the brothers. It is a fact that prior to death, the testator had suffered Alzheimer’s disease but the brother was able to get the mother to write a Will. It is suspected that the mother may have been coaxed “manipulatively” into making the Will. The solicitor intended to institute proceedings challenging the validity of the Will. However, wisdom came to this brother who agreed to divide the property fairly with his other siblings including the solicitor’s client thus obviating the need for any court action.

2.3 Knowledge and Approval (Intention)

It is important that the testator must know and approve the contents of his Will. He need not understand its legal effect. As previously adumbrated, the burden of proof generally lies on the propounder but in practice there is usually a presumption that a testator who had the necessary capacity and who duly executed the Will did so with the necessary knowledge and approval of its contents. It would be up to those opposing the Will to prove the testator lacked knowledge and approval by reason of, inter alia, force, fear, fraud or undue influence or that words were included in the Will by mistake e.g. a typing error.

But note, however, that there is no presumption of knowledge and approval in the following circumstance – where – the testator is blind or illiterate [2] or the Will is signed by someone other than the testator on his behalf. In these cases a presumption can be raised after the Will is read over in the presence of the testator who indicates his approval of the contents. The attestation clause must be adjusted to indicate that this was done. In the absence of a suitable attestation clause, affidavits of knowledge and approval will be required by the Registrar – especially in non-contentious probate where there are suspicious circumstances – These arise where the Will substantially benefits the person who prepared or drafted it (or a close relative of such a person) or someone who took a hand in obtaining its execution. If the Will is to be admitted, the propounder will have to remove the suspicion. Note that any part of the Will of which the testator did not know and approve cannot be admitted to probate.

Generally, the Court has no power/jurisdiction to write the testator’s Will for him. Thus, there is a limited remedy of rectification. However, the Court may only exercise this power if it is satisfied that the Will as drawn fails to carry out the testator’s intention as a result of either a clerical error (e.g. a typing error) or of a failure to understand the testator’s instructions (not where the draftsman has mistaken the legal effect of words used). Under the English rule, the time limit for application for rectification is six months from the date of the grant. Personal representatives who distribute the estate after six months from the date of the grant but before application for rectification are protected from personal liability. Thus executors who delay distribution of the estate either out of greed or for whatever reasons do so against their own risk. Apart from the incidence of implied trusteeship in favour of the beneficiary under the Will, the risk of accounting for the estate is upon them. Executors are thus advised that it is in their own interest to proceed to distribution with expedition once the grant is obtained and not to hold over any asset or property of the estate to which beneficiaries are entitled under the Will. It is good practice to support a Will with an affidavit of the testator. The affidavit must prove that the testator intended to execute the whole Will including that part of it following the signature. The affidavit in support will go to show that the testator made the Will “with intent to give effect to the Will” as his last Will and testament.

Note the vitiating effect of section 15 Wills Act 1837 [3] where a beneficiary, or his or her spouse, witnesses the Will, the gift to the beneficiary fails but the Will remains valid. In essence, under section 15 Wills Act 1837 a gift to a beneficiary fails if the beneficiary or his/her spouse witnesses the Will. The attestation of the Will remains valid; it is the gift which fails. The critical time is the date of the execution of the will, so that if a witness marries one of the beneficiaries after the date the gift is not affected. The gift is saved if (ignoring the attestation by the witness or his or her spouse) there are at least two other non-beneficiary witnesses. Note that there are other factors which may vitiate legacies – e.g. gifts contrary to public policy – e.g. a gift to a Terrorist Organisation, a gift in promotion of immorality, disclaimer, suspicious circumstances, mistake, want of due execution, etc. The Will must also contain an attestation clause. The attestation clause recites that the Will was executed in accordance with the requirements of section 9 Wills Act 1837 and raises a presumption of due execution. If the Will contains no suitable attestation clause, the Registrar must require an affidavit of due execution from attesting witnesses, or if none is available, from anyone present at the time of execution.

It is important to point out here that the marriage of the testator automatically revokes his Will. The exception to this is where it appears from the Will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the Will should not be revoked by that marriage. The Will is not revoked by a marriage to that person but marriage to any other person will revoke the Will. Thus a professionally drawn Will should, for the avoidance of doubt, contain an express statement of the testator’s expectation of marriage. It should be drafted in the following terms to avoid ambiguity or uncertainty-… “This Will is made in expectation of my forthcoming marriage to Alicia and I therefore declare that such marriage is not intended by me to revoke any of the terms or disposition in this my Will.”

Note further that it is trite and settled beyond any cavil that when a marriage is dissolved, annulled or declared void after the date of the testator’s Will, any appointment of the former spouse as executor and/or trustee and any gift to the former spouse is effectively revoked – though – the Will remains otherwise intact. The revocation only affects gifts to the former spouse. Where the gift to the former spouse fails, it will fall into residue, or, if it is a gift or residue, will pass on intestacy. We conclude this article by once again stating that the importance of Wills in the life of people cannot be overestimated. Death is an inevitable end of earthly life. We are living witnesses to the acrimonious destructions of family units and affectionate relationships at the end of some testators’ life owing to conflicts and disagreements over inheritance – i.e. who gets what. Homes have been broken and scattered, and children and relations have become mortal enemies in their struggle to share the properties of the deceased. That is why it is advised that one considers making a Will to avoid those problems. Apart from the obvious fact that it is preferable and perhaps more assuring for a person to nominate executors who would ensure that his wishes expressed in the Will are carried out. Suffice it to say that it is cheaper to process application for the grant of probate than for the grant of letters of administration which is an inevitable consequence of intestacy.

2.4 Attested Will

Main benefits – considered to be probative – document proves its own authenticity. If will challenged in court, they will presume will as valid until proved otherwise

2.4.1 Requirements in Making an Attested Will

Will should be signed on every page by the testator using his/her normal signature. If unable to sign – courts said they would accept signature by solicitor or church of England minister – only if they had no interest in will.

Witnesses should see testator sign.

These witnesses sign document on last page at the end [4] .

Witnesses should be described in document. Testing Clause – will be described in this last clause in will. Usually described by writing their occupation [5] , address.

Witnesses cannot be blind, insane, can’t be under 16 years of age. Witnesses should sign as soon as possible – absolutely definitely sign before person dies [6] .

2.5 Payment of Debts

All known debts must be established by the executor and paid before proceeding with the distribution of the estate. The order in which debts must be paid is set out in section 51 of the Bankruptcy Act 1985.

2.6 Prior Rights

Prior Rights were created by the 1964 Act in favour of a surviving spouse/civil partner and will only become available on intestacy – a good case to consider the benefits of prior rights is Kerr Petitioner 1968 SLT (Sh Ct) 61. There are three categories of prior rights. These are:

1. The right to the dwelling house,
2. The right to furniture and plenishings, and
3. The right to money from the estate.

2.7 Dwelling House

A surviving spouse or civil partner is entitled to up to the value of £300,000 for the dwelling house, provided s/he was ordinarily resident in the property at the time of death. Where the dwelling house is valued at more than £300,000, then the surviving spouse or civil partner will receive the amount in cash instead.

2.8 Furniture and Plenishings

The spouse/civil partner is entitled to up to £24,000 worth of furniture and plenishings, from a house where s/he was again ordinarily resident. This does not include things like cars, caravans and family heirlooms.

2.9 Cash Sum

The spouse/civil partner has a right to a cash sum of £42,000 where there are surviving issue, and up to £75,000 where there are no surviving issue. Each of there rights is independent from one another, so you cannot give up one right to get more from another.

2.10 Legal Rights

Legal rights are payable only from the moveable estate. The spouse/civil partner/children will always have a claim to legal rights on the estate as legal rights cannot be defeated by a will and apply in both testate and intestate succession. The estate available for legal rights depends on whether there is a surviving spouse/civil partner or issue alone, or both. Jus relictae/relicti will give the spouse one third of the moveable estate if there are surviving issue and one half if not, similarly with a civil partner. After twenty years, legal rights will cease to be enforceable Legitim will give surviving issue one third of the moveable estate where there is a surviving spouse/civil partner and one half if not. Where issue have predeceased, their share of the legitim fund will be paid by way of representation to remoter issue however remote. If claimants to the legitim fund are of different degrees of relationship, it will be split per stirpes and when claimants are all of the same degree of relationship per capita.

After legal rights have been satisfied, the remaining balance in the moveable estate is known as the “dead’s part”. Where no will has been made over the dead’s part, it will become part of the free estate. A will can be made over the dead’s part without fear of any challenge for rights by the surviving spouse / civil partner or issue.

2.11 Free Estate

The free estate is what is left over after debts, prior rights and legal rights have been paid out. Order of distribution of the free estate is set out in section 2 of the 1964 Act and each class of relative must be exhausted before moving on to the next one. All beneficiaries of the free estate must be blood relations of the deceased with the exception of adopted children.

2.12 Unworthy Heirs

An unworthy heir is a person who has killed another, from whom the killer would stand to receive a right of succession. The unworthy heir will not be able to inherit from the estate if they are proven guilty of either murder or culpable homicide in a court of law. The case of Re Cripeen concerned a husband who, after killing his wife, was set to inherit her legacy which he would in turn bequeath to his mistress. The wife’s family naturally objected and took the case to court, where it was ruled that the husband would be said to predecease the wife. Consequently her estate fell into intestacy and her family then succeeded her. The same shall apply in cases where the accused has been convicted of culpable homicide, for in the case of Smith Petitioner a wife was convicted of the culpable homicide of her husband, from whose estate the court ruled she should not benefit.

2.13 Proof of Death

Death must be proved in order to permit inheritance; the executor must ever precisely the date and place of death to obtain confirmation, and must prove this if challenged under the Registration of Births, Deaths and Marriages Act 1965 an extract from the Register of deaths is sufficient evidence of the death, but is not conclusive proof.

2.13.1 What if Proof of Death is not Conclusive?

A person may be declared by the court to be dead on the occurrence of 2 situations:

1. He is thought to have died
2. He has not been known to be alive for a period of at least seven years.

This is governed by the Presumption of Death Act 1977.

This area of law is governed by the Succession Act 1964. Other areas of law which should be considered in relation to the law of succession are:

• Family Law [7] and
• Contract Law.

INTESTATE SUCCESSION

3.1 Distribution of Estate

Distribution of an intestate estate will be as follows:

• Payment of debts
• Prior Rights; Right to dwelling house
• Prior Rights; Furniture and Plenishings
• Prior Rights; Right to cash
• Legal Rights
• Free Estate

3.2 Intestate Succession Statutes

The intestate succession laws take into account the distinction between community property and separate property and treat each differently. Note, that community and quasi-community property are treated identically. Hence, all further references to community property should be understood to include quasi-community property as well.

If a decedent dies survived by a spouse, all of the community property interest of the decedent passes to the surviving spouse. This, combined with the surviving spouse’s one-half interest, results in the surviving spouse being the sole owner of all of the community property.

The decedent’s separate property is distributed in accordance with Wills Act 1837. The surviving spouse receives all of the separate property as well if the decedent is not also survived by any issue, parent, brother, sister, or issue of a deceased brother or sister. The surviving spouse receives one-half (1/2) of the decedent’s separate property if the decedent also leaves either:

One child or the issue of one deceased child, or

No issue, both a parent or parents or their issue, or the issue of either of them. The surviving spouse receives one-third (1/3) of the decedent’s separate property if the decedent is also survived by:

More than one child;

One child and the issue of one or more deceased children; or

Issue or two or more deceased children.

That part of the intestate estate not passing to the surviving spouse, as above, or if there is no surviving spouse, is distributed to the surviving issue of the decedent, in equal shares if of equal degree. If the issue are not of equal degree, then those of more remote degree take per stirps—(those of the nearest generation to the decedent still living each get a share, and the issue of those of that generation who are deceased equally divide the share of their deceased ancestor of that generation).

If there are no surviving issue, then the estate passes to the following categories of persons, either equally, if all of the same degree of kinship, or as described above. If there are no surviving persons in the category identified, then the estate passes to the next category identified, in the order indicated:

1. First, to the decedent’s parents.
2. Next, to the issue of parents or either of them.
3. Next, to the grandparents or issue of grandparents.
4. Next, to the issue of a predeceased spouse.
5. Next, to the decedent’s closest next of kin (if two or more kindred of equal degree claim through different ancestors, then those claiming through the nearest ancestor are preferred).
6. Finally, to the parents of a predeceased spouse, or to the surviving issue of such predeceased parents.

Notwithstanding the above, if there are no surviving spouse or issue of a decedent, and the decedent had a predeceased spouse who died less than fifteen (15) years before the decedent, then the real property of the decedent attributable to the decedent’s predeceased spouse passes to the predeceased spouse’s issue, parents, issue of parents, and then kin. With regard to personal property having documents of title and an aggregate value in excess of £10,000, if the predeceased spouse died less than five (5) years before the decedent, such personal property passes in a like manner.

In order to take by intestate succession, a person must survive a decedent by 120 hours.

Relatives of the half-blood, adopted persons, and those conceived before but not born until after the decedent’s death take as if they were relatives of the whole blood or had been born prior to the decedent’s death.

If a person is related to a decedent by two lines of relationship, he or she may take only a single share through the line of relationship resulting in a larger share.

3.3 Right of Representation

The phrase “by right of representation” may have one of two meanings, depending upon the circumstances under which it is used.

Whenever property passes by intestate succession, or a will, specifies that property passes to the issue of a deceased beneficiary but does not specify by what method, distribution is made by dividing the property into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation with issue then living. Each living member of that generation receives one share and each deceased member’s share is divided in the same manner among his or her then-living issue.

Whenever a will, trust, or other document specifies that property is to be divided “by right of representation” or “per stirpes,” then the property is first divided into the number of shares equivalent to the total number of children living or deceased but having living issue, with each living child receiving a share and each deceased child’s share divided in the same manner.

3.4 Escheat

If there is no surviving person to whom a decedent’s estate may pass pursuant to the laws of intestate succession, the estate escheats to the State.