Advice to Will Executor - Law Essay Example

John’s Will Execution

John’s Will cannot be executed without making several legal references. Since its drafting in 2012, various changes have happened to John’s estate that may prompt the seeking of legal aid by its executor. Several clauses do not apply due to their ambiguity or lack of clarity. To start with, there is no residuary clause to guide its executor on the method of disposing of the remaining estate after all the wishes of the deceased are fulfilled. This absence means that Joe will have to refer to the Succession Act, 1965 before making any move. As it is, the will is marred with unachievable wishes that John made before his death. The will raises various questions about its validity, given that John did not seek any legal assistance when drafting the will. The inconsistencies that Joe finds out between the will and the reality also make him question the mental capacity of the testator at the time this will was drafted. The fact that John makes references to non-existing persons invokes the clause in the Succession Act of 1965 on Gifts that Fail. When making deliberations on the execution of the will, Joe must follow up the irregularities that are apparent in the will to avoid denying any beneficiary their share while also ensuring that the wishes of the deceased are fulfilled. One of the strategies that Joe must employ in making his decisions is intuition. He has a history with John, and he is better placed to deduce what John might have implied by making some wishes. The suggestions in this paper act as advice to Joe based on the Irish Family Law and the Succession Act of 1965.

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The case of Paula

In his Will, John stated: “I leave my farm to my niece, Paula, who currently resides in Co. Kerry.” On further inquiry, Joe finds out that John did not have a niece named Paula. Instead, his niece’s name was Jill, whose mother was Paula. Additionally, neither Jill nor Paula lived in Kerry. These inconsistencies raise two questions. Joe is wondering whether John referred to Jill’s mother or Jill in his wish. By giving John’s farm to Jill, Joe would have probably denied Jill mother her inheritance as stated by John. Also, by giving the farm to Paula, Joe would likely have denied Jill her inheritance as left by her uncle. Paula was John’s sister, and he could not have confused her for his niece. However, it is likely that John could not remember the name of Paula’s daughter although he knew that she had one. Therefore, the most likely scenario is that John wished to leave his farm to Jill, but she could not remember her name out of old age. In his statement, John was clear that he wanted his farm to go to his niece who he accidentally referred to with her mother’s name. I would, therefore, advise Joe to allocate the farm to Jill since she is the most likely designated heiress for this estate. There isn’t any possibility of a legal tussle that will ensue if Joe allocates the farm to Jill. Paula, John’s sister, is not likely to contest this offer in a probate court. Joe does not need to consult a lawyer due to the few risks of litigation that may result from his decision.

Donation to the Cancer Center

A gift may fail where its subject matter is unclear for the court or executor to satisfy the wish. However, the court can deduce what the testator may have wanted by making such an offer and thereby execute the will based on intuition (Ward, 2010). This incident has happened before in the case of Makeown vs. Ardagh. John in his 2012 Will stated the following: “I leave the sum of €50,000 to the Cancer Charity in Dublin.” The will’s executor found out later that there are two Cancer Charity Organizations in Dublin. However, there was a record that John had been giving donations to one of the Cancer Charities. Joe is thus tempted to reason out that John referred to this particular Charity in his will. But it is also possible that John wanted to give the donation to the other Cancer Charity after he was gone since both Charities were doing philanthropic work. The second assumption is not very likely since John had never given his money to another Cancer Charity in Dublin apart from the Irish Cancer Cociety. In this matter, I would advise Joe to offer €50,000 to the Irish Cancer Society

The Case of Mary Smith

Another challenge that Joe is facing in the execution of John’s will is the problem of non-existent property. In his second statement, John ordered the executor to give the deceased’s car and some money to a person by the name of Mary Smith as a token of appreciation for the care that she offered John during his last days. Joe is informed that John knew of two people who were named Mary Smith. One of the people who went by this name was a woman who cooked for John in her ailing years. The other person is the first woman’s daughter, although John does not have any information that she took care of him in any way. Therefore, it is prudent for Joe to fulfill John’s wish by giving the said gifts to Mary Smith senior. This statement has another problem. John drafted his will in 2012 while he still owned a car. By the time of his death, this car was no longer in John’s possession. According to Ward (2010), this car falls under the “Gifts that Fail” section of the Succession Act of 1965. Article 375 (a) (c) of the Act states that “ademption” by extinction may occur if the gift in question does not exist at the time of the death of the testator (Keatin, 2016). In this case, I would advise Joe to give €10,000 to Mary Smith senior as John’s appreciation for her care. Joe should also tell Smith that John had offered his car to her, although the gift could not take effect since it was not present at the time of John’s death.

Residuary Clause

Since there is no residuary clause attached to the will, John will consult the Succession Act, 1965 to determine how the remaining estate will be subdivided. For this matter, John is assumed to be intestate. At this point, Joe believes that John was not succeeded by any spouse or children. According to the law, John’s estate should be inherited by his parents, although he is not survived by any. Also, John does not have any living brothers or sisters. The people that are next in the succession line are John’s nieces and nephews. According to the law, John’s remaining estate will be subdivided equally among Steve and Nancy. His first cousin Fred and Nancy’s daughter are not entitled to any inheritance. Fred could only be a candidate to inheritance if he were the only relative alive. Mary, Nancy’s daughter, cannot receive any inheritance since her mother has already received a gift from John. Before making this judgment, Joe should first investigate whether John has a legally recognized spouse.

The Case of Mary Murphy

On further probing, Joe realized that John had a legally binding affair with a man named Mary Murphy. This fact is ascertained by the discovery of a marriage certificate in John’s house. Joe believes that Mary Murphy did not spend any time with John, and the couple did not have any children. John did not mention of Mary Murphy in his Will, and there is no document to show that Mary is exempt from John’s inheritance. Therefore, there is a possibility that Mary will appear later to claim his legal right share as a married spouse. The Succession Act of 1965 Article 376 states that a spouse is entitled to half of the testator’s estate if the couple had no children. However, Article 380 of the same Act precludes a spouse from inheriting any estate if they had deserted the testator for two or more years before the latter’s death (Keatin, 2016). I advise Joe to ignore Mary Murphy since she has no right under the law to claim any share of John’s estate.

References

Keatin A. Succession Law in Ireland: Principles, Cases and Commentary. Clarus Press

Ward, P. (2010). Family Law in Ireland. Kluwer Law International.