The Commercial Law essay
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The case in hand is based on trusts and executorships, where the property of the deceased is distributed among the beneficiaries identified in the will. An executor who is responsible for the distribution of the deceased person’s property and or estate does this. The law used in the execution of the property is the law of succession. In this case, Hild died testate and she had left behind an estate worth £50,000 to Berni for the purposes known to her. However, Berni cannot recall having such a discussion with Hild, but Laura is able to remind Berni of the discussion she had with Hild a couple of years ago concerning Hild’s plans regarding her property upon her death (Basil J. L. Shtein, 1973). She can remind her that it was Hild’s wish that Berni will use the money for the benefit of Amada. Amada is very much delighted to hear this. Berni is worried on whether this is a valid arrangement.
In definition, executorship is a body of statute law, case law, and practice concerning the management of the estate of a deceased person. A person may either die; testate where he/she leaves a valid will, which disposes of all his free property, i.e. the property of which he was legally competent to dispose during his lifetime, and in respect of which his interest does not terminate by his death. Hild died testate since she left a valid will before she died. Intestate where he does not leave a valid will or a will that does not dispose of all his free property.
The will that was left by Hild must have been a written will, which had conformed to the requirements of a written will. These requirements of a valid written will include the following, 1) It must be written and signed by the person who is making it. In this case, Hild wrote the will and she must have signed it so that it can take effect after her death. The signature so signed should be in such a way as to show that it was signed intentionally. If the testator is unable to sign the will for some other reasons, another person appointed by the testator should sign it in his presence and under his direction. The signing of the will should be attested by two or more persons who are competent enough to witness the signing of the will in that they should not be drunk or of unsound mind. In addition, the signature should be placed at the end of the text. If it is placed in any other place, it might invalidate any information after the text no matter the importance of the information 2) (Gano, 2008). At least two competent persons should attest the will. In this case, Hild had confided to Laura on her intention to have the 50, 000 left to Berni for the purpose known to her, which is to take care of Amanda. Therefore, Hild is the witness in this case, since she can remember her discussion with Hild meaning that she is of sound mind. 3). A person making the will should have the capacity to make the will. He should not be a minor, i.e. he should be above eighteen years of age, he should be of a sound mind, and he should not make the will while under the influence of any substance. 4) There must be an intention to dispose of the property. In this case, Hild intended to dispose of 50, 000 to Amanda. She clearly indicated this in the will and she stated the person to do so was Berni. 5) While making and signing of the will, there should be no influence on the testator. He should make the will out of his own volition and without any duress or coercion from family members, friends, guardians, or neighbors (Chatterton, 1989). The will should also be without any alterations, since the alterations will invalidate the will, especially where they are made before the will is executed. Although Berni cannot remember any discussion with Hild, it is a valid will, since she is one of the persons who were named in the will and therefore, it is expected that she should not know of such an arrangement in the will. It is a valid will, since it is expected to take effect after the death of the testator, i.e. a will acts posthumously. It cannot be enforced during the life of the testator and it can only take effect after his death (Jeffrey F. Beatty, 2009). A valid will should also operate only to show an intention to do something. It is a way in which the testator would his property distributed in his absence.
Characteristics of a will:
Dispositionary: A will disposes the deceased’s property.
Formality: For a will to be valid, it must be written and signed by the deceased and appropriate witnesses. Oral wills area only valid, if the testator dies within three months of making the will.
Alterations: Alterations to the will, e.g. in form of codicils, need to be signed and witnesses appropriately.
Posts-humous effect: A will only takes effect after the testator is dead. Thus, it is often said that a will is a device through which the dead can rule the living fro their graves.
Capacity: The testator must have the capacity to make a will at the time that he makes the will e.g., he must be of sound mind.
Legality: The will must be legal for it to be upheld in law.
There are different types of will, which might be written by the testator and they include the following: A special (or specific) legacy (Re. Boyd, Boyd v. Boyd) - it is a testamentary gift of a particular part of assets of the deceased, which sufficiently describes that part, be it in general or in specific terms and manifests an intent that the asset shall be enjoyed as taken in the state and condition indicated by the description. This is the case in which Hild left her 50,000 to Amanda.